UK: Window On The Stars

Last Updated: 30 November 2007
Article by Grant Howell

Grant Howell is a partner in Family Law at Charles Russell LLP.

This article first appeard in New Law Journal.

How private should the family courts be? asks Grant Howell

In Brief

  • Concern has been expressed about the lack of transparency in family courts.
  • However, the Constitutional Affairs Select Committee found no widespread crisis of confidence in the family courts but still recommended making family proceedings more open.

The media spotlight focused on the country’s divorce process in October, when the McCartneys sat down with their lawyers to thrash out agreement on ancillary relief claims linked to their divorce. The question of privacy in family courts is a topical one. There is no doubt that the current position is confused. Where matters are dealt with in either the county court or the High Court, they are protected from public scrutiny yet they become open to both public and press—subject to reporting restrictions at judicial discretion—should they reach either the Court of Appeal or House of Lords.

Lack Of Transparency

There has also been much recent debate centred upon consultation papers issued by the government. The latest, Confidence and Confidentiality: Openness in Family Courts—A New Approach (CP 10/07), was published on 20 June 2007. The focus here is on matters relating to children, but the consultation paper recognises the family courts’ role in resolving financial issues and the far-reaching effects of their decisions.

Concern has been expressed about the lack of transparency, leaving the process open to accusations of secrecy, bias and injustice thereby damaging confidence in the system. A specific aim of the consultation paper is to make the culture of the family courts more open. In Re B (a child) (disclosure) [2004] EWHC 411 (Fam), [2004] All ER (D) 500 (Mar), Mr Justice Munby expressed his concern about further loss of public confidence in the system.

Interestingly, however, the Constitutional Affairs Select Committee in its report Family Justice: the Operation of the Family Courts Revisited found no widespread crisis of confidence in the family courts but still recommended making family proceedings more open.

Under the Family Proceedings Rules 1991 (SI 1991/1247), r 2.66(2) ancillary relief hearings are in chambers. It should be borne in mind, however, as stressed by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [2002] 1 All ER 865, that this is a question of protecting the parties’ privacy rather than guaranteeing confidentiality. Those coming before the family courts, whether they are clients or lawyers, need to be careful if they wish to publicise matters.

In Re B, both the mother and her solicitor were roundly criticised by Munby J for passing information not only to the press but also to the government. Parties may—or may not according to Lord Justice Thorpe in Clibbery—also fall foul of the Judicial Proceedings (Regulation of Reports) Act 1926 (JP(RR)A 1926) and are undoubtedly subject to an implied undertaking rendering confidential not only all court documents but also information disclosed.

Role Of The Media

In terms of openness, the media obviously has a critical role to play and has argued that it should have unfettered access to the family courts as a watchdog or "proxy for the public". History is not particularly helpful to the media’s cause. JP(RR)A 1926 was brought in to limit the lurid details of divorce cases then appearing in the press. There was also a strong consensus among the 400 or so responding to the consultation paper that the media would only be interested in certain types of high-profile case.

Also, all too often, a public report does not accurately reflect the reality of the decision reached. It is also interesting to note that research carried out by Dr Julia Brophy at Oxford University, Openness and Transparency in Family Courts: Messages from other Jurisdictions, found that in countries where there is more media access, such as Australia, there is no evidence of greater public understanding of the process.

However, the media does have an important role and the courts retain the discretion to omit the media in children matters, for example. However, in ancillary relief cases the presence of the media would have a negative effect by inhibiting witnesses and intimidating the parties. The whole process is founded on the need to give not only disclosure which is full but also covering a wide range of matters whether personal, medical or financial. The Court of Appeal in Clibbery was alive to the dangers of substantially prejudicing the administration of justice.


Coming back to the McCartneys, it is also relevant that the appointment in October was a financial dispute resolution. Such appointments are seen as a key element in facilitating settlement and to be effective must be approached "openly and without reserve". Non-disclosure of the content of the appointment is seen as vital and essential to promote the possibility of settlement.

This leaves one final aspect often of relevance in celebrity divorces, the desire to impose confidentiality. It is usual to suggest that both parties enter into an undertaking to the court agreeing not to reveal information to others or cause information to become public knowledge. The court is unable to impose such an agreement and it may not even be enforceable but suggestions of such undertakings tend to be controversial and can block settlements in cases.

While the world, therefore, waits to hear the eventual outcome for the McCartneys, it is hoped that this article will shed more light on why, in the meantime, we remain in the realms of speculation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Grant Howell
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