Open Family Courts: Transparent justice or privacy invasion?

Open Family Courts: Transparent justice or privacy invasion?

This article was first published in Solicitors Journal on 20 June 2016 and is reproduced by kind permission.

Is allowing unwarranted attention to be turned to famous divorcing couples the price you pay for an open court? What is, and how do you find, a good balance, asks Pippa Allsop

The news of Johnny Depp and Amber Heard’s divorce has sent the Western media into a feeding frenzy in recent weeks. Despite the fact that the couple have been in a relationship since 2012, their marriage has barely lasted 15 months – with Heard filing for divorce on the basis of ‘irreconcilable differences’ in May 2016.

Heard has apparently now dropped her claim for spousal support, which I should imagine has Johnny heaving a massive sigh of relief, given that the California Family Code provides that, in determining an amount for temporary maintenance, ‘the court need only consider the moving party’s needs and the other party’s ability to pay’, and with the benchmark for determining needs being ‘the standard of living enjoyed during the marriage’. However, Heard is reportedly still pursuing her application for a restraining order to be made permanent against Depp, and day after day more court documents and the salacious details therein are cited by the press. How do they know all of this? Primarily because family proceedings in California are public proceedings, except in some limited circumstances.

Historically, family law proceedings in England were always held in private, with no publicity outside of the courtroom. However, a public call for greater transparency in family proceedings has grown and gained traction in recent years, based primarily on the feeling that important decisions were being made in ‘secret’ as opposed to in ‘private’.

In a bid to address these rising concerns, new rules were introduced in 2010 which permitted certain journalists to request attendance at family proceedings, on the basis that they would only be reporting on the issues of the case as opposed to the specific individuals involved.

Then, in 2014, the continued call for greater transparency led to the president of the Family Division, Sir James Munby, issuing guidance to judges which stated that, as a matter of public policy, there should be greater openness in the family courts, and encouraged greater publication of judgments with a view to raising public awareness and appeasing the criticisms of ‘the veil of secrecy’ in family proceedings.

Hearings in relation to matrimonial finances before Mr Justice Holman are now nearly always held in open court. Holman J has maintained that publishing judgments alone does not go far enough and that it is ‘only if the public are able to see and hear for themselves how the proceedings unfold in the courtroom, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice, and public accountability.’ Disparately, Mr Justice Mostyn is of the strong opinion that matrimonial finance proceedings are ‘quintessentially private business’ and it would seem that the majority of the members of the Family Division are currently inclined to agree with his position over Holman J’s.

This stark difference in judicial approach and opinion is inarguably unhelpful in providing much-needed clarity to this complex issue. It is undoubtable that the delicate balancing exercise between the respect for individuals’ privacy and the need for transparency in family proceedings is not a straightforward one, but that does not mean it should not be undertaken.