BT v CU and A v M: the transparency in family law debate continues

It has been barely a fortnight since the issue of transparency in family law proceedings was commented upon on this website, but already two judgments have been published which tackle the matter head on.

In BT v CU [2021] EWFC 87, a case dealing with whether the impact of Covid on a husband’s finances was cause to vary a pre-existing financial order, Mostyn J permitted the judgment to be published without anonymising the names of the husband and wife involved. Only the children’s names were withheld. After arguments from the husband’s counsel, Mostyn J allowed the judgment to be republished with anonymity granted to all. He made this decision purely to protect the children in the case, through fear that identifying the wife would allow easy identification of the children involved. Despite this, Mostyn J made it clear that in future he would seek to publish financial remedy judgments in full, with only children being granted anonymity.

In his subsequent judgment in the case of A v M [2021] EWFC 89, Mostyn J elaborated on his reasoning by commenting that he did not believe there was any such right to anonymity in financial proceedings. He points to a historical reticence to anonymise the judgments in cases relating to ancillary relief in family proceedings as influential on his stance on increased transparency.

The debate over increasing transparency in family law proceedings is not a new one. Long before these cases and the publication of the transparency review ‘In Confidence and Confidentiality: Transparency in the Family Courts’ started to garner media attention, the issue of openness within family proceedings has been contested among practitioners. It is hardly surprising. Family practitioners are conditioned to view the confidentiality of proceedings as sacrosanct – a typical hearing in financial proceedings can see personal finances discussed and laid bare, allegations of ‘bad conduct’ (from affairs to violence) raised and intimate details of one’s private life raked over. Confidentiality has been viewed as the cornerstone which those families going through distressing proceedings can rely on to provide at least some small reassurance that their private lives remain private.

To many, this seems eminently sensible. However, there are strong arguments against the continuation of family law cases operating almost entirely in private. When a magistrate or judge is asked to hear a case in the Family Courts, they are making a decision as to what is the fair and proper outcome in matters about family finances and the welfare of children. They are being asked to represent the social and value judgements of society as a whole – which in turn results in their decisions actively shaping what these values are. The public have a legitimate interest in being able to access these judgements, both to reaffirm their trust in the court’s approach, or to act as a check on the judges’ discretion. Without this transparency, the public rely on the full force of the rumour mill and inefficient reporting for their only insight into family justice, often leading to allegations of unfair and biased behaviour from the justice system that is meant to serve them. Effective public scrutiny is rendered impossible.

This is not to say that those who call for greater transparency do not acknowledge it must have its limits. The interests of children involved in court cases must be protected, and their anonymity preserved. However, it is hoped that in the long term, a more open family justice system will lead to rising standards and greater public confidence.