Open justice is founded on the idea that justice must not only be done but also be seen as being done. It makes sense for the public to have access to information to hold our courts accountable. There are some notable exceptions. For example, children’s proceedings are usually private. Children involved in proceedings shouldn’t be named so that they can keep their privacy and move on without fear of it becoming public.
The financial remedy proceedings are also a different type. Parties are required to disclose all financial information. In the absence of any doubts of credibility, it is generally agreed that the information should be kept confidential. While accredited media members and legal bloggers can attend court and report on the decisions, hearings are held in secret so members of the public are not able to attend. Journalists have not been allowed to see documents or were unable to report on the identities of those involved. Publications are generally anonymous. There has been an increase in transparency.
The judiciary has changed its approach since 2014 when the former President of the Family Division issued Guidance about transparency. More cases are now being heard publicly and reported anonymously. Recently, Mr. Justice Mostyn, who had anonymized his financial judgments, stated that he no longer believes that financial remedy proceedings are a special type of civil litigation that justifies a veil being put over the details in the court’s judgment. He said that his default position would be to publish all financial remedy judgments without anonymization, except that children will continue to remain anonymous.
A consultation was also held to determine whether accredited journalists and legal bloggers should be allowed to access documents related to family law cases. Reporters will be unable to understand, follow and report effectively if this happens. Reporters will have the ability to publish a general description of the financial resources of each party (without identifying the actual items) as well as a description of any open offers that the parties have made to settle their case. They can publish any information, including photographs and relevant issues, that is said or heard about the proceedings.
Although the goal is admirable, on average there are 4,300 cases per week in the family courts of England or Wales. However, little is known about how justice works. Sir Andrew McFarlane is the current President of the Family Division. He has suggested caveats to his call for greater transparency, including protecting children’s privacy. As we already mentioned, having more information about the decision-making process should help divorce lawyer surrey free consultation and clients understand the process better and allow them to predict how a court will view a case.
However, this is not the only concern. Family financial proceedings are generally held in private due to the sensitive nature of the information that must be revealed for the court to determine a fair settlement. Our clients worry that their most personal and financial details will not be revealed. This is a concern they have daily. This is what we are proud of. It is disturbing to think that an aggrieved relative might speak poorly of another party, or reveal certain details to a journalist – possibly unrelated to the principle upon which a legal judgment is made.
Sir Andrew’s suggestion could have the side effect that parties may seek other ways to resolve their issues. This could include arbitration, in which the entire process, including binding judgment, takes place in private. You can also resolve financial disputes at private hearings. Or that the parties seek to mediate, or avoid court in another way. Uncouple is a new innovative service that combines mediation, neutral evaluations, and arbitrations. It allows clients to use the best parts of all dispute resolution formats to resolve.
The judiciary might not be so disturbed if there were more alternatives to the court system – the courts have become utterly overwhelmed. Ironically, Sir Andrew’s transparency review could mean that less public data will be available – at least for those with the means to afford private justice. In practice, anonymized judgments are not published. This raises questions about how fast a system that is already slow can process them at sufficient speed to provide the guidance they promise in ongoing cases.