Transparency in family financial remedy proceedings

For some time now, reporters have been allowed to attend private hearings so that there is transparency in the Family Courts. However, Sir Andrew McFarlane said in October 2021 that his overall conclusion was that the time had come for accredited media representatives and legal bloggers to be able not only to attend and observe family hearings but also to report publicly on what they see and hear.

A transparency implementation group was set up with Sir Andrew McFarlane as the head and with various sub-groups within it. A financial pilot began on 29 January 2024 to run for 12 months but may be extended beyond that in the same way that the children pilot has been extended.

The recommendations from the transparency group were that:

• out-of-court settlements should remain confidential and private;
• cause lists in all courts should name the parties involved in the various matters;
• authorised reporters and legal bloggers should attend court as before;
• if a reporter attends court, then there should be provision for Position Statements and ES1 Forms (setting out basic background information) to be provided to the reporter;
• parties should remain anonymous in reporting, as usual; and
• District Judges and Circuit Judges should be encouraged to publish more Judgments on an anonymous basis.

What applications fall into this category?

• applications for Financial Remedies on Divorce;
• applications under Schedule 1 to the Children Act 1981; and
• applications under Part III of the Matrimonial and Family Proceedings Act 1984.

The pilot does not, however, apply to Financial Dispute Resolution Appointments, appeals to Circuit or High Court Judges, or to Court of Appeal Civil Division cases.

Where is the pilot taking place?

The pilot is currently running in the Central Family Courts in London, Birmingham, and Leeds and it is going to be extended to High Court level in the Royal Courts of Justice in November this year. However, it will no doubt be rolled out nationwide over time in the same way as the children pilot has been extended.

Attendance at court

Reporters can attend and report on what they see and hear in court. The court has the discretion to exclude a matter from reporting but only for specific reasons and after proper consideration of those reasons. Reporters are encouraged to inform the court and parties in advance of their intention to attend and report on a particular hearing but not much notice can be given because lists are only published the day before in the afternoon. Reporters can attend in person where there are ‘‘in person’ hearings and they can attend remotely where hearings are being held remotely.

Transparency Orders

The court will consider making a Transparency Order where a reporter attends. Typically, a Transparency Order will be made at a first hearing in a case actually attended by a reporter. The court has the discretion to ban reporting completely but there can be an interim Transparency Order and a Final Order. A Transparency Order will normally be expressed to last until further order. A Judge has discretion to make an interim Transparency Order at the outset of a Final Hearing to last until the conclusion of the hearing. This ensures that no reporting takes place until the Judge makes a final decision about whether reporting should or should not be allowed.

The court can modify the terms of the Transparency Order at any time but it is to be borne in mind that a reporter cannot publish:

• names and addresses of parties,
• names of children and any photos of them,
• schools of the children or employers of the parties,
• addresses of properties,
• details of accounts, or
• investments held by the parties.

The Position Statements of both parties and the Form ES1 can be disclosed to the reporter but nothing else unless the court permits anything further. A request for these documents must be made at the hearing which the reporter attends. The reporter is not, for instance, entitled to see a document just because it has been referred to in a hearing. The detailed Asset Schedules/Forms ES2 cannot be provided without permission of the court and so Position Statements setting out the background summary of the case and the issues to be determined and Orders sought should contain as little detail as possible and should refer to ‘the London property’ or ‘the Suffolk property’, for instance, rather than providing detailed addresses.

Reporters can share documents with their editorial team/legal advisers as long as they provide those people with the Transparency Order made by the Judge. Reporters must hold documents securely and confidentially and they must not be kept for longer than necessary.

Where Judgments are published, the parties’ names and the children’s names and their addresses cannot be identified. Advocates should address the court on whether any Transparency Order should be made, and to what extent, at the start of a hearing when a reporter is attending.

Top tips  

It is important to consider transparency at each stage along the way of a family case and particularly so if the matter is high profile. The court will record who has attended a court and any reporter must provide ID or complete a relevant court form.

Lawyers can approach reporters directly so can ‘tip off’ reporters. Again, this is more likely to be the case when there are high-profile parties involved. It is for that reason, as well as for reasons of saving costs and trying to resolve matters generally, that out-of-court routes should be considered right the way through, including mediation, collaborative law, private FDRs or arbitration so that there is no prospect of reporting by the media.

If there are to be court proceedings, it is highly recommended that First Appointment Directions are agreed in advance so that there is no hearing and that if matters do not settle at a Financial Dispute Resolution Appointment, that there is arbitration or mediation put in place to try to settle the matter.

Arguments should be at the ready, certainly before any hearing, as to why anonymity is essential in that particular case, if it is. If, however, the other party does not agree to arbitrate or mediate, then an interim Transparency Order should be sought so that no reporting can be undertaken until the conclusion of the hearing, if at all, depending on the Judge’s thoughts in this regard. It is also important to keep details in any Position Statements/ES1 Forms as vague as possible to make sure that there is no room for recognition of parties or their families.

If you have questions or concerns about family proceedings, please contact Emma Harte.