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The media are fond of a ‘divorce battle’, never more so than when the relationship of a pair of celebrities has been burst apart by salacious revelations. There’s one of these going on at the moment, as you may have seen from some coverage in the newspapers (Guardian, Telegraph, Mirror), over the last couple of weeks.

It seems to be the usual story: high-profile, wealthy people meet and fall in love very publicly, have a son (who is now teenage), and many years later, publicly break up. Divorce, sadly, ensues. The reports suggest that this couple has unfortunately not been able to work out how to settle the financial repercussions of the separation, and are currently in the middle of court proceedings about the division of their assets.

Any celebrities engaged in or planning a ‘divorce battle’ may be particularly interested in a recent decision of Mr Justice Mostyn, who has been asked to decide whether details of a financial hearing in a high-profile divorce can or should be reportable. Unfortunately, this is not as simple a decision as one might expect.

We have written before about the drive towards increasing transparency in the family court, which started as a response to a campaign to shed light on the processes of public law children’s care proceedings. The current situation is that accredited representatives of the media are able to attend hearings of various categories of family law proceedings, but are not able to report much of what they see and hear. There are firm contempt of court rules to which they must adhere, and strong penalties for those who transgress. A judge can choose to exclude members of the press on certain grounds, and further to constrain what matters can be reported.

The case at hand is, legally, an ‘unremarkable financial remedies case’. The judge has made an order prohibiting the media from publishing any report of the case that identified any person involved in the case other than the lawyers, or referring to any of the parties’ financial information, whether of a personal or business nature, save to the extent that any such information is already in the public domain. His reasoning behind that order has just been released, and is interesting as it shines a clear light on the differences of opinion among judges about how to tackle this type of case.

Mr Justice Mostyn’s opinion is “…that the law concerning the presence of the media in these private proceedings … is to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them.”

He goes on to say, “The reform which resulted in [the press attendance rule] being made was the result of a campaign to enable the world to see how public law care proceedings were conducted. It was not designed to enable the essential privacy of ancillary relief proceedings to be cast aside. Reporting how a case is conducted, and what legal points are raised, in an abstract way is one thing; laying bare the intimate details of the parties’ private lives is altogether another.”

The judge notes that other judges in the family court do not see the need for press restrictions in financial matters. Mr Justice Holman, for example, requires financial remedies cases listed before him to be conducted in public, with no reporting restrictions at all. Mr Justice Mostyn explains carefully why he disagrees with this approach on the basis of the current law, and in principle, then observes that,

“The present divergence of approach in the Family Division is very unhelpful and makes the task of advising litigants very difficult. A party may well have a very good case but is simply unprepared to have it litigated in open court. The risk of having it heard in open court may force him or her to settle on unfair terms. In my opinion the matter needs to be considered by the Court of Appeal and a common approach devised and promulgated. Obviously if the view of Holman J is upheld and adopted then the rest of us will have to follow suit.”

It is certainly unsatisfactory that those who are unlucky enough to be embroiled in High Court family proceedings are currently subjected to judicial roulette regarding how public or private those proceedings might turn out to be.   Some high-level guidance to the judiciary on dealing with the conflict between privacy and transparency would be very welcome. In the meantime, it’s worth remembering that dispute resolution options that don’t involve the court – mediation, collaborative law and arbitration – carry reassurances of privacy and confidentiality that cannot be guaranteed in a court context, no matter which judge is hearing your case.

If you have any concerns about media attendance or publicity in your family law matter, or anything else, do give us a call on 01223 443334 and make an appointment with Tricia, Adam, Gail, Simon or Sue.