One of the most important considerations for anyone with significant wealth, or who has a public profile and who is getting divorced, is the subject of confidentiality and privacy. It is often a key factor of any such client who is considering where and how to get divorced, and it is something that matrimonial solicitors will have in mind in the first client meeting. Balanced against that is the push towards increasing transparency within our family justice system, the purpose of which being to promote accountability and public confidence in the same.
A very good illustration of how this works in practice was recently witnessed by us in the High Court in Vince v Vince [2024] EWFC 389. More specifically, whether the current transparency rules for financial remedy applications permit the dissemination of documents to non-attending journalists and the terms surrounding the same. Also considered is the issue of whether accredited journalists can pass information between themselves. It was at this hearing that Cusworth J was able to make rulings and give guidance on these subjects.
The President of the Family Division, Sir Andrew McFarlane, in his 2021 transparency report, commented that ‘The present system in the family court whereby a journalist may attend any hearing but may not always report what they observe, is not sustainable. I have reached the conclusion that there needs to be a major shift in culture and process to increase the transparency in a number of respects.’
Usually, financial remedy proceedings in the Family Court take place in private. That is, the public cannot be present, pursuant to FPR 27.10(2) but accredited media representatives and legal bloggers may attend, owing to FPR 27.11 and FPR PD 27B. In Vince v Vince [2024] EWFC 389, various journalists from different organisations came in and out of the courtroom throughout the trial, observing the cross-examination of the parties and taking notes as they wished.
‘The Transparency Reporting Pilot for Financial Remedy Proceedings’ was introduced in different parts of the country in January 2024, extended to the Royal Courts of Justice from 11 November 2024 and, from January 2025, has been rolled out nationwide. The pilot contained an Annexe II Order, providing a template for final transparency orders. What exactly the intention of the guidance and pilot is, has sparked debate.
It is assumed that if reporters attend, a transparency order will be made. The template order (drafted by a committee with no statutory power) should not be accepted as a given. Each case is fact specific, and any transparency order made needs to reflect that.
The guidance clearly focuses on a situation whereby a reporter physically attends court, receives documents relating to the case they are witnessing and then reports upon it. What, then, for reporters who are unable to physically attend multiple hearings? There are, of course, over 120 courtrooms in the Royal Courts of Justice alone. Similarly, what happens to those reporters who can attend for just part of the hearing?
A balance of ECHR rights needs to be found. Namely, Article 6: right to a fair trial; Article 8: right to a private and family life; and Article 10: freedom of expression.
Cusworth J in Vince v Vince [2024] EWFC 406 considered six main questions, which can be summarised as below:
- Are any non-attending reporters to be limited in what they can access, i.e. should they be able to see the same documents seen by those attending, or only what those attenders choose to report from the documents?
No, it is not in the public interest to restrict the distribution of information in such a way, which would not result in a fair balance of the competing rights and duties in play. There may be important facts arising out of the hearing, which would be in the public interest to be disseminated.
- What would be the consequences if other journalists were to be dependent upon the attendees for their knowledge and understanding of the parties’ respective cases?
This is likely to result in a reporter reporting not from a direct source of information but from other journalistic material, i.e. a double-hearsay style of reporting. In principle, if a document is suitable for press consideration and comment, and already in the hands of one reporter or more, other accredited journalists should be permitted to see and comment on the same document, once served with the transparency order.
- If an attending journalist decides to only report partially, are other reporters prevented from obtaining a balanced view by considering the documents at the attendees’ disposal?
No, the court should not be offering exclusive rights of original documents to attendees. Resources do not allow, and it is unrealistic to expect, every journalist wishing to report on a case to attend each hearing. Attending a couple of minutes of a hearing to get over this barrier is unlikely to result in that reporter being better informed to report than one who did not attend but who does have the court documents.
- Should parties be able to simply send their position statements out on demand at the request of interested reporters who do not propose to attend, ahead of any hearings in a case?
If a transparency order has been made, and the documents fall within that order, then it might be possible, if the parties’ representatives agree. Absent agreement from the parties, documents should only be released after conclusion of the hearing. Documents may need to be redacted before they can be shared if, for example, they contain commercially sensitive information.
- If a journalist need not attend, how will the court regulate what they see and can comment on?
Any reporter receiving court documents will be bound by the same transparency order as attending journalists. Before such an order has been made, the documents shall remain confidential. If a reporter does not attend, they shall only have the documents once approved by the court, rather than at commencement of a hearing. Once any document has been made available to an attending reporter, they should potentially be available to any other reporter, if they fall within the appropriate definition within the guidance.
- May reporters who have attended themselves later pass court documents to those who have not?
Transmission within a journalistic team is necessary and acceptable. Receiving reporters must be suitably accredited and have been served with the transparency order. They will be bound by such terms. Transmission can only happen once a document has been legitimately received by the first reporter and should not happen before the hearing to which the document relates.
In summary, reporting will be dealt with on a case-by-case basis. That may depend on factors such as the level of public interest, sensitivity of matters being considered, and profiles of the parties. Until a transparency order has been made, court documents shall remain confidential. Reporters need to have been served with a copy of any transparency order made and will be bound by its terms. The Family Court are pro-transparency, so those embarking on divorce or financial remedy proceedings are warned that they may find their hearing not only being attended by reporters but also detailed in the press.
Partner Sarah Jane Lenihan and Solicitor Laura Couves at Dawson Cornwell, who represented Ms Vince, together with Simon Bruce and Amelia Alston, instructing Richard Todd KC and Lily Mottahedan of 1 Hare Court Chambers in Vince v Vince [2024] EWFC 389.
