Balancing the need for greater openness in the workings of the family courts with the right to respect for the private and family life of children and their parents is an ongoing and very lively debate. We are at a crossroads. The left-hand turn leads to greater access to family court hearings and reporting on the evidence before the court and the outcome of the proceedings. The right-hand turn to preserving the right to privacy for those involved in the court process and particularly of children and preserving their anonymity. Straight ahead means more of the same. Prolonging the uneasy tension between the two and negotiating the inevitable bumps in the road as apart from anything else, it is not easy to navigate through the current state of the law and it is expensive for those faced with the prospect of securing a Reporting Restriction Order. The press and other media organisations will want to be heard and they have deep pockets in terms of “tooling up” with the best advocates who spend the vast majority of their time in the Kings Bench Division, where the rules are different and who no doubt are strong proponents for opening up the workings of the family courts to greater public scrutiny.
So how do they deal with the principles of open justice in family courts in other countries? It is always fascinating to look west to the US, which in theory and of itself would suggest 52 different approaches, as to how to strike a balance between transparency and privacy in the family law process.
Let’s start in New York State. Copies of documents, other than the Judgment of Divorce itself, can only be obtained by one of the parties involved or by an attorney who is representing one of the parties. Divorce records are not open to public inspection and the court file can be sealed entirely upon the application of one of the parties. A little surprising perhaps but then again, the last President of the US, one Donald J Trump had his last divorce determined there and we really can’t talk.
Head west and slightly north to the lakeside state of Michigan and it’s very different. Family proceedings are open to the public and the press. During the Covid pandemic, when the courts were closed, hearings were conducted by Zoom and those proceedings were required to be streamed live on YouTube to ensure the public and press had access. It is difficult to get a court file “sealed” entirely but the Court does seal the portions of its files that relate to the names and dates of birth of children, psychological evaluations of the parties or the children and other private medical records. Furthermore, creative lawyers can keep parts of the parties’ financial information private by entering into a consent judgment that is covered by the words “Confidential Agreement”. If that then contains all the financial information it will not be made public with the judgment because of its confidential status.
Then way down south to the Gulf states and Alabama in particular, where the position is “ad hoc” and the judge decides upon an oral request. Almost always granted if there are child abuse/sexual abuse allegations. However, a file cannot be closed for a financial case even if involving celebrities. Both parties can request privacy but in a high-profile case involving the state’s so- called former ‘luv gov,’ the judge at first instance closed the hearings and sealed the pleadings. That decision was appealed with the Alabama Appeal Court overturning the decision for lack of any legitimate reason. As in Michigan, consent between the parties for an agreement reached to be regarded as confidential goes a long way towards securing privacy.
Finally, to Tennessee where there is a presumption of openness and where the Tennessee Supreme Court has adopted the same standard as the US Supreme Court to overcoming that presumption. It can only be rebutted by establishing an overriding interest based on findings that closure is essential to preserve higher values and it is narrowly tailored to serve that interest. Whilst motions for closure are expedited, they can only be heard by the trial court if the motion was ‘on file’ for a period of 3 days presumably so as to give interested members of the public and the media the opportunity to intervene and oppose the motion. Again, the court has the discretion to order the closure of certain parts of the file and the public has a right to request a transcript of the proceedings which must be made available ‘at the earliest time’ and also for the limited purposes for an appeal.
So even a whistle-stop tour of the four states mentioned above and with the possible exception of New York, the presumption is in favour of openness and scrutiny by the public and media with the possibility of closing certain parts of the file, combined with a judicial discretion to restrict access further albeit subject to pretty tight constraints and timescales. It is also worth noting that part of the work being undertaken by the Transparency Implementation Group, set up here in December 2021, is to look at the experience in jurisdictions outside England and Wales. The examples above barely scratch the surface but the trend is unmistakeable and subject to the right check and balances, one that should inform and move the debate here on down the road.