Family Court transparency: has New Labour reneged on its promise?

In December last year Lord Chancellor Jack Straw QC declared that the ­Government would propose to change the law to allow access to the Family Court so that justice could be seen to be done.

So in true New Labour style the Ministry of Justice announced that the Family Court would be thrown open to journalists.

According to a statement made by Straw at the time: “It’s vital these courts ­command the confidence of the public if the public is to accept the court’s decisions.”

Before the end of the month Straw will see his vision realised. While the move is designed to restore the public’s faith in family law, legal opinion is divided over whether the Government’s aims will have the intended effect or if, in fact, they will serve to erode ­privacy further.

“This is such a massive issue and we’re not sure how it will pan out,” says Withers of counsel Lisa Fabian Lustigman.

Lustigman adds that she has concerns about the presence of the press in high-profile divorce courts, but says it will be a bigger issue for divorce cases that are not already in the public domain than it will be for those who have celebrity status.

“I would want to know why it’s so important for them [the press] to be there,” says Lustigman. “Particularly if it isn’t somebody in the public eye and it could be used as a prurient issue. Is there going to be an issue with one side ‘tipping off’ the press?”

Manches partner James Stewart argues that there are already issues with some high-profile spouses employing public relations agencies as spin doctors.

“We see a dangerous precedent emerging in trial by PR where clients and PRs are effectively able to influence media opinion,” he says.

The most notorious divorce of 2008, Mills v McCartney, was played out in the public arena and ended up with Heather Mills winning apologies from four UK newspapers for invasion of privacy.

Formula 1 tycoon Bernie Ecclestone learnt that his then wife Slavica was ­divorcing him through the newspapers after her PR agency Borkowski released a ­statement of her intentions.
Both cases demonstrate a clear conflict between privacy and transparency, but also show how the media can be manipulated to the advantage of one spouse.

There is a careful balance to be struck between ­transparency and privacy. Already there is much debate about media intrusion in the lives of celebrities, and this could spill over into the Family Court.

Lustigman comments: “I have concerns about the press and would immediately flag that up to the client so they’d have the opportunity to instruct the barrister to have them removed from the court.”

She acknowledges, however, that the press could counter that application and draw out legal arguments over the legitimacy of their presence. All while the divorce is ongoing.
“I don’t think the press will be in any better ­position than they are now,” she ­continues. “But we’ll hear a lot more complaints from the client.”

Mills & Reeve partner David Salter, who sat on the committee that formulated the rules governing media presence in the court, agrees: “There are still reporting restrictions,” he says. “Until they’ve been reformed you don’t really move on.” ­Stewart goes as far as saying the policy is a “damp squib”.

Salter explains: “The ­Government says it will repeal the reporting ­restrictions as soon as parliamentary timing allows. So far these changes do make a difference, but it’s not as ­radical as it would appear.

“It’s been hailed as a ­monumental step, but it’s not going to make a wholesale change until reporting restrictions are lifted.”

So why the publicity ­fanfare in announcing the policy? “Public confidence in the Family Court has ­collapsed,” states Stewart.

The coverage surrounding recent child neglect cases such as the Baby P abuse case and the Shannon Matthews kidnap plot, of which her mother and uncle were found guilty, has worked to intensify calls for further transparency in the court system.

“Cases that involve ­children tug at the heart strings, but the court is the last in a long line of authorities, and I’m not sure where the court should play a part – unless it’s a public law issue,” says Lustigman.

Mr Justice McFarlane, chairman of family lawyers group Resolution, is in favour of transparency, but sets the tone of the family legal profession when he states: “The current changes will do little, I fear, to address the very real difficulty that journalists face when confronted, after the end of the court case , with a parent who’s complaining about a miscarriage of ­justice.”

In other words, those cases that have helped erode public confidence in the Family Court will not be open to journalists, so ultimately the target of improving transparency will be fundamentally handicapped.

Family lawyers anticipate encountering hacks in the court, but it is hoped that interest will wane other than in high-profile cases.

In the meantime, clients will have to put up with the age of transparency and those who are more ­sceptical of the media will be safe in the knowledge that the Government’s ­definition of transparency differs somewhat from that of the profession.

The Judicial Reviews

July 2006
‘Confidence and Confidentiality: Improving Transparency and ­Privacy in Family Courts’ stated: “We want to make the ­family courts more open, but we want as well to ensure people’s anonymity.”
June 2007
‘Confidence and Confidentiality: Openness in ­Family Courts: A New Approach’. The then attorney general Lord Falconer said: “We’ve decided not to proceed with proposals to allow the media into family courts.”
December 2008
In ‘Family Justice in View’, Lord Chancellor Jack Straw MP and ­Minister for Family Justice Bridget Prentice MP stated: “Enabling people to understand the decisions made about them and their families may help them trust that those ­decisions were the right ones. We hope that access to more information, and ­confidence that the right decision was made for the right ­reasons, may help the public have confidence this is the case.”