Partner Lesley Smythe has written for FTAdviser, discussing the potential privacy concerns surrounding the Financial Remedies Court transparency pilot, which launched Monday, 29 January in Leeds, Birmingham, and London.
Lesley’s article was published in FTAdviser, 1 February 2024, and can be found here.
For the first time, journalists and bloggers are now able to report on court cases involving financial issues between divorcing married couples and civil partners, as a transparency pilot launches in the Financial Remedies Court (FRC).
The roll-out began Monday this week, the same day a wider pre-existing family court transparency pilot covering public children cases – hitherto restricted to three courts – is broadened out to cover a further 16, encompassing half the family courts in England and Wales.
In the latest move to improve transparency and accountability within the family court system, reporting on proceedings in the FRC can take place at the Central Family Court in London, as well as in Leeds and Birmingham.
This announcement is a key measure emerging from a review launched in 2021 by the President of the Family Division, Sir Andrew McFarlane, which aims to achieve “better and purposeful transparency in the family court, to increase understanding and scrutiny of the system.”
As part of the pilot, cause lists for all FRC courts, including cases heard at the Royal Courts of Justice, will name the parties and state that the proceedings involve financial remedies. While these will be subject to court-issued Transparency Orders, jigsaw identification could remain a possibility.
The scheme is designed to retain some control over privacy for now. The direction of travel, however, is clear, with the pilot due to extend to High Court cases later this year and with some senior judges calling for full transparency in recent years.
Interestingly, however, financial dispute resolution (FDR) hearings are not included as part of the pilot. These hearings, the second of three in the process where separating parties mediate an agreement in court with the judge’s assistance and input will remain completely under wraps to anyone outside the courtroom.
If a third of the process remains behind closed doors, and allowing the publishing of parties’ names and financial affairs remains under the control of the court, then it begs the question: why bother with a halfway house pilot that will make divorce hearings a more anxious ordeal than they already are without obvious immediate advantages?
Some proponents are arguing that transparency will allow judges better insight into how other cases are decided, thus evening out rulings across the courts. In a jurisdiction built on the principle of discretion, however, and for an area of law that is so dependent on personal circumstances, it is hard to see why this cannot be achieved without beginning to intrude on the privacy of separating parties.
For those who are interested in the process itself, namely individuals who are getting divorced, they can already access this information through solicitors providing expert guidance, or by conducting their own research.
With this in mind, it seems extremely unfair on two people who have already made the tough decision to end their marriage to then be exposed to a situation in which the general public might know their financial details if the court allows.
In the President of the Family Division’s guidance, the suggested core principles of avoiding disclosing identities, addresses, schools, companies, accounts, or assets are just those – suggestions. While intimate details about people’s lives may not immediately be on display, it certainly emboldens those judges who have been pushing for open courts.
Now retired, Mr Justice Holman and Mr Justice Mostyn were prime examples, having both made clear their wish for full transparency in financial cases, publishing judgments naming parties and putting their financial affairs on public display.
A shift in this direction could have serious implications for families. While the new transparency pilot is undoubtedly well-intentioned, it could be perceived that the compound effect of these seriously negative side-effects is to apply extra pressure on parties to settle.
Fear of private financial details being publicised could deter many from following through in court proceedings. Contrastingly, if the financial details will not be available for journalists and legal bloggers to report on and given the importance of discretion and flexibility in our family courts, the advantages of transparency do not seem as clear as many practitioners have argued.
As the scheme unfolds in coming months, it will be intriguing to see what its results are. Only then will it be possible to fully take stock of a transparency overhaul which will have significant repercussions for our family courts.