From 27 April 2009 family Courts were opened to the media in an attempt to increase transparency and understanding of the legal process.
Although this sounds ominous, Judges have wide discretion to exclude the media or restrict reporting. Furthermore, the media do not have the right to see documents relied on in Court.
How does this affect you?
The change will only affect people who have to attend Court. For a marriage to legally come to an end, you must go through the Court system although divorce proceedings rarely result in Court attendances. Ideally, through amicable agreement or the use of mediated settlements, couples can avoid going into court altogether.
Many do not realise is that although they can divorce this does not automatically dismiss the parties’ financial claims against one another. These need to be formally dismissed by the Court within different proceedings, known as ancillary relief, which run parallel to divorce proceedings.
Many cases are resolved without the parties attending Court. Documents will be filed with the Court setting out the financial agreement, which the Judge will consider and ratify.
If the parties cannot agree and one party makes an application for ancillary (financial) relief this might result in a number of Court attendances. The Court process allows parties to negotiate a settlement with the assistance of the Court at a Financial Dispute Resolution hearing (FDR). The media will not be granted access into these types of Hearings, as they are conducted on a ‘without prejudice’ basis.
This is a term used when two parties are in dispute, and one makes a settlement offer to the other. ‘Without prejudice’ makes it clear that the settlement offer should not be construed as a waiver of rights. Importantly, without prejudice communication cannot be used in evidence in court proceedings if the attempts at settlement fail.
If the parties do not reach settlement at an FDR the case might proceed to a Final Hearing. The media may be granted access to this Hearing, if the Judge allows them to. However, the majority of cases settle on or before an FDR.
In addition, if there is a dispute concerning the children, such as care proceedings or contact or residence (often referred to as ‘custody’) these again have to be dealt with within different proceedings.
Both ancillary relief and children proceedings can result in Court attendances if agreement cannot be reached between the parties and this in turn might result in media interest.
The changes are more likely to affect cases concerning children, in particular those involving social services and care proceedings or the rich and famous. However, reporting will be subject to restrictions and children’s identity will continue to be protected.
Samantha Jago, a family lawyer with rhw Solicitors LLP. You can visit her website here