12 October 2015

Privacy and the Family Law Courts

The recent divorce case of Oasis frontman Liam Gallagher and Nicole Appleton of All Saints fame, has thrown the issues of publicity and the press in the family courts into the spotlight.

Lawyers and clients alike have complained about the uncertainty of the law in this area. Before 2009, proceedings for ancillary relief (resolving the financial issues arising in a divorce, and now known as financial remedy proceedings) were held in private with only the parties or their representatives in attendance. April 2009 saw a shift towards greater transparency in family proceedings, when accredited members of the media were given the right to attend family hearings.  This is still the case, but whilst the media can attend these hearings, legislation states that the hearings are to be held in private.  Furthermore, given the nature of the subject matter dealt with in family proceedings, where the media is present, case law provides an order of anonymisation, if sought, will generally be made.

A reporting restriction was made in the Gallagher v Appleton case against News Group Newspapers Ltd and the Press Association. They then applied back to the court to lift or modify the reporting restriction. Mr Justice Mostyn refused the application.

Mostyn, in giving the above judgment, repeated many of his reasons stated when he dealt substantially with this issue in the case of DL v SL [2015] EWHC 2621 (Fam). In DL v SL, Mostyn makes a strong argument for the protection of an individual's private information, but accepts that the press are a useful tool to act as the "eyes and ears" of the public. He goes on to say that there has to be a balance between open justice and the privacy of the individual aptly reflected by the continuing balancing act in many cases between Article 8 of the Human Rights Act 1988 – right to privacy and Article 10 – right to freedom of expression.  Mostyn states that the very nature of the information dealt with in family cases means that "in almost every case where anonymisation is sought, the right to privacy will trump the right to unfettered freedom of expression". 

This is in direct contrast to Mr Justice Holman's view in Fields v Fields [2015] EWHC 1670 (Fam) where he states "because I am a public court and not a private arbitrator, I must be exposed to public scrutiny and gaze".

The arguments therefore persist. There is however, increasing awareness of the opposing opinions in this area, and the House of Commons has recently published a briefing paper on confidentiality and openness in the family courts setting out the current rules and the building pressure for reform which has taken place over the last five years. However, it remains to be seen whether any substantial changes to the law will be made or further guidance published to try and align the numerous and conflicting issues in this complex area of the law.

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