In May this year, the Financial Remedies Court Transparency Implementation Group (TIG) published their report on transparency. The Financial Remedies Court (FRC) is a specialist court that resolves financial issues upon the breakdown of a marriage or civil partnership. Over the years the position in relation to transparency in the FRC has become muddied. The 164-page report serves as welcome guidance towards clarifying transparency in financial remedy proceedings.
TIG identified nine issues surrounding transparency. Some of the issues identified include: the inconsistency in listing financial cases in the High Court (listed anonymously) and in the Family Court (listed using names), limited access to documents by reporters, the lack of published written judgments below the High Court level resulting in an over emphasis on ‘Big Money’ cases and the lack of clarity for reporters in knowing what they can and cannot report on. However, the main and most controversial issue TIG covered, is whether financial remedy judgments should be published on an anonymised basis.
For an insight into the current position on anonymity in the FRC, read our article on The Move Towards Transparency in Financial Remedy Proceedings.
Anonymity in the Family Court has been an issue of hot debate in recent years. With High Court judge, Mr Justice Mostyn, routinely not anonymising judgments and a new pilot scheme allowing accredited journalists to report on some children law cases in the Leeds, Carlisle and Cardiff Family Courts, there is a great deal of uncertainty and change surrounding this issue. TIG recognised that this creates confusion on the current legal position for judges below the High Court, the parties, and reporters. This undoubtedly makes it even more difficult and stressful for those going through the Court system to understand whether their personal information will remain anonymous or be open to the public.
After an extensive review of other legal systems and survey responses from judges, solicitors, barristers, and the press, TIG formed the conclusion that the default position should be the general anonymisation of reporting, both by the media and in judgments. This, it is said, will strike the right balance between the public interest being promoted by more judgments and reports; protecting the rights and welfare of people going through the FRC; and guarding the integrity of the system. In coming to this conclusion, TIG weighed out the disadvantages and advantages of the argument.
The nature of financial remedy cases is such that a vast array of information must be disclosed under the duty of full and frank disclosure. This information is not purely financial and ranges from health and other personal issues to commercially sensitive information. TIG acknowledged that financial remedy proceedings are not unique in requiring disclosure of a wide range of extremely personal information, an argument put forward against anonymity by Mr Justice Mostyn, however, TIG could not identify another set of proceedings with the same width and depth of information required to be produced at the same place and time as in financial remedy proceedings. TIG argues that therefore a different approach in the FRC, e.g. anonymisation, to other proceedings is justified. It is also argued that there is a natural defensiveness to comply with the duty of disclosure on the part of the financially stronger party and that it is likely that an accidental consequence of opening up transparency will create even further attempts to avoid disclosure thereby decreasing the effectiveness of the FCR.
Aside from privacy, those in favour of anonymisation point to the inevitable inequality that will result from the creation of two tiers of family justice. Those who wish to keep their affairs private, and who can afford to, may seek to obtain privately made orders or judgments through private Financial Dispute Resolution hearings (FDR) or arbitration. A private FDR is where the parties will pay for a judge to give an indication about settlement and the parties then negotiate an agreement based on that indication. As it is a process outside of the court-based system, (think of it as private healthcare instead of NHS), it is not subject to the same requirements in terms of reporting. Along with the other clear benefits of more time, energy and availability dedicated to their case, those having a private FDR will also manage to avoid the publicity that may come with going to court if some content from the proceedings can be reported or if judgments are not anonymised. However, those who cannot afford to pay a private judge may face reporters in their hearing, potentially some information published publicly and will receive public judgments through the court. This could lead to wealthy individuals in ‘Big Money’ cases avoiding the FRC completely and resulting in less visibility and transparency altogether.
Some argue that a core advantage of transparency in the family courts is that it will encourage the parties to settle outside of court or use other forms of Dispute Resolution, like private FDRs and arbitration, freeing up court resources. The TIG report argues that this is wrongly promoted as a benefit as it places a higher focus on resource saving rather than the benefits to parties and the quality of the system.
TIG argues that maintaining a default position of anonymity does not place a veil of secrecy over financial remedy proceedings. The TIG report is, however, mere guidance and a call for reform on the issue of anonymity remains one for the Court of Appeal to set straight. At the moment, uncertainty remains for those going through the FRC and clients are well advised to seek advice on the likelihood of an unanonymised judgment being given, what personal information could be made public and how they could try to protect against that.
Article written by Tamara Turner-Distin Trainee Solicitor in the Divorce and Family Team.