Keeping Private Matters Private

Sara Hannell Sara Hannell talks about privacy in family proceedings and why you may prefer to keep your personal affairs out of court.

When you work towards an outcome in collaborative law, mediation or arbitration – the out-of-court dispute resolution procedures in which we excel as Creative Divorce – you are guaranteed complete confidentiality. Meetings take place privately, in comfort and at your convenience. More than that, you are guaranteed ownership of the outcome in a process that you control and of which you are in charge with regard to timing, disclosure, and the personnel involved.

You may have heard about the drive to increase transparency in the family courts. This arose from a campaign spearheaded by the Times newspaper, which had become concerned about what they considered the secret workings of the courts. They particularly focussed on matters of public children law, at a time when there had recently been several high-profile failures in the child protection system.

The Ministry of Justice and the higher echelons of the family judiciary then took up the cause of transparency. Both supported moves towards greater openness in order to increase public confidence in the system; our current Family Division President remains a passionate supporter. The starting point now is that journalists can attend all family proceedings. The court retains a limited discretion to exclude the media in the interests of children or for the safety and protection of parties and witnesses. These provisions apply to financial and children proceedings arising from divorce or separation as much as to child care proceedings. (If you’re interested in reading the technical details of how the media and family courts interact, you can do so here.)

The judge may limit what the media can actually report from inside a family court, but they are increasingly reluctant to do so unless it would have a negative impact on any children. Financial cases, and in particular those which end up in the Court of Appeal, are frequently reported without being anonymised.

Avoiding publicity is a high priority for many of my clients involved in divorce, both to protect their children and reputations, and also to keep their commercial affairs private. Avoiding the presence of journalists in court hearings is important to many more. A decision to keep matters out of court, and take decisions privately, means that these concerns fall away. The retention of privacy in private matters is one of the many reasons why I recommend collaborative law as a way forward for my clients wherever it is appropriate to do so.