Penningtons Manches' family law team puts individuals' right to privacy above the public's need for transparency

Posted: 03/02/2015

The Penningtons Manches family law team’s response to the President of the Family Division’s consultation paper on the transparency agenda for family justice reforms clearly sets out the team’s opposition to the proposals.

Sir James Munby states that there are two principles underlying the consultation: that there is a need for “greater transparency in order to improve public understanding of the court process and confidence in the court system” and that “the public has a legitimate interest in being able to read what is being done by judges in its name.”

He invited those involved with family justice to comment on a number of proposals to open up the workings of the Family Court to public scrutiny, to increase the public’s understanding of what and how the court does while preserving confidentiality and respect for the privacy  and family lives of the people served by the system. These included:

• The possible hearing in public of certain types of family case
• The disclosure to the media of  certain case documents to facilitate their understanding of cases and “assist them in performing their watchdog role”
• Increasing the number of judgments in family cases being published on BAILII
• Enhancing the listing of cases in the Family Division and the Family Court to provide more detail about the case.

The Penningtons Manches response focussed on the family law team’s opposition to the first two proposals – hearing cases in public and disclosing documents to the media.

Hearing cases in public

“We do not believe it is right that people who have to resort to the court for assistance should face having their private affairs exposed in public, while other couples who are fortunate enough to be able to reach agreement or pay for private arbitration are able to keep private matters private.

“In our experience, clients are extremely anxious about the possibility of publicity …it becomes of magnetic importance to them, even if the real risk of media interest is small.

“We believe it is essential to distinguish between the fact that the public may be very interested in particular proceedings and there being a genuine public interest in exposing the private affairs of the individuals concerned to public scrutiny.”

Disclosure of documents to the media

“We oppose the suggestion that advocates should be required to prepare case summaries with the deliberate aim that they should be released to members of the accredited media.

“We also consider that there is a real risk that some clients and/or advocates would seek to ‘play to the gallery’ in their case summaries. It is already an established tactic of some solicitors and counsel to seek to generate a storm of publicity to put pressure on the opposing party to settle. We do not believe that it is appropriate for the court in any way to encourage such behaviour.”

Increased reporting of judgments and enhanced listings

The team cannot see any practical advantage in increasing the number of cases published on  the British and Irish Legal Information Institute’s website (BAILII), without evidence that such publication is actually leading to greater public understanding of the working of the family justice system. It is also concerned at the possibility of ‘jigsaw identification’ of the individuals involved as a result of the publication of judgements, even if they are anonymised.

Similarly, the team is extremely sceptical about the value of adding a brief description to the current case numbering system, as not only would this place an additional burden on court staff, it would also make it even more difficult to preserve the anonymity of the parties involved.

Summing up the family law team’s position on the proposals, partner Jane Craig said: “We feel strongly that the proposals ignore our clients’ strong and legitimate desire for privacy. People come to the family courts for judicial decision making as a last resort, when all other avenues have been explored without success. Having to give evidence about very personal and private matters is distasteful and distressing enough without being exposed to the prospect of having their private information handed to a journalist or referred to in open court.”

For a copy of the full Penningtons Manches response to “Transparency – the next steps” please click here.

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