Privacy and financial settlements by guest blogger Anna Ratcliffe
November 8, 2012 0 comments
From April 2009 the amended Family Proceedings Rules have allowed “accredited representatives of news-gathering and reporting organisations” inside the family courts. As Marilyn Stowe has previously discussed on this blog, the reform followed three years of government consultations which aimed to increase public confidence in the family justice system by making it more transparent. Those that opposed the reforms expressed concern that witnesses would be less willing to come forward and that hearings would be overrun with journalists intent on reporting sensationalised accounts of the proceedings and the private lives of the parties involved. The parameters of what the media could and could not report were unclear and this has remained the case. Fortunately, a recent judgment has provided some much needed clarity on the reporting restrictions that the media must abide by when reporting matters heard in the family courts.
A v A  is the first reported case on the reporting of financial remedy proceedings in the family courts by the media. The judgment concerns whether the media should be allowed to report on the five days of financial remedy proceedings that they had previously attended. In considering the matter, the judge quoted at length the guidance of Dame Butler-Sloss in Cibbery v Allan  1 FLR 565 which stresses that there is an implied undertaking of confidentiality in the compulsory disclosure of documents in proceedings and that this is extended to information provided under compulsion in financial remedy cases. The judge followed this guidance and commented that virtually every piece of information disclosed in financial remedy proceedings would be subject to that implied undertaking. Notwithstanding the new transparency measures, the judge reasserted the importance of the undertaking and added that the guidance in Cibbery v Allen includes evidence given by witnesses.
Anybody that has had experience of financial proceedings in the family courts will be aware of the strict duty to give full and frank disclosure to the other party and the court. The importance of this duty is obvious – without full and frank disclosure the process is rendered meaningless since it is essential that the court has a true picture of both parties’ financial situations in order to make a fair decision as to how assets and income should be divided. The disclosure process can be a source of anxiety for those involved in proceedings, not necessarily through a motivation to conceal their financial arrangements from the other party or deceive the court but rather a desire to prevent this information becoming available to the wider public or misrepresented by the media. This judgment should reassure couples that their financial affairs which have been properly disclosed to the court will remain confidential.
The judgment also considers the difficult issues associated with balancing the right of the media to freedom of expression and the right of individuals to privacy. The judge explored the conflict between these principles but found that in the context of financial disclosure in the family courts, the competing rights weighed together with the open justice principle left the balance in favour of privacy of the individual. The court also gave consideration to the fact that the policy reason behind the lifting of the reporting restrictions in family proceedings was to enhance the widespread understanding of the family justice system. In these circumstances it was held that there is no sense in which the reporting of the financial arrangements of parties in family proceedings could enhance this understanding – the public would be able to see how the system operates and how decisions are made without knowing the specific factual details of a case. The judge therefore prohibited disclosure of any information in respect of the proceedings save for the matters permitted in respect of the divorce suit, the fact and date of the application and hearing, and the fact and date of the settlement – but not the details of the settlement.
This judgment will be undoubtedly be welcomed by divorcing couples should their case attract the attention of the media or another third party for whatever reason. Divorce proceedings are inevitably highly emotive and stressful for the parties involved. it is encouraging that couples can at least have confidence that financial details disclosed in proceedings will remain confidential.
Anna graduated from Cambridge University with a honours degree in social and political sciences. Following this she trained and qualified at a magic circle city law firm before joining Stowe Family Law in 2012 to pursue her interest in all aspects of family law. Anna has quickly developed experience in a range of family law matters from ancillary relief to international children’s cases.
Anna enjoys independent travel and has previously spent two extended periods volunteering in Africa.
Photo of county court door by Elliott Brown under a Creative Commons licence
November 8, 2012
Categories: Finances and Divorce