Press cuttings: A v A

In A v A, the husband initially wanted the media to be excluded from the hearing. The judge refused to allow this, but agreed to impose a temporary reporting ban. A date for judgment was fixed, but, minutes before the judgment was due to be handed down, the parties settled, rendering delivery of the judgment unnecessary.

Concerned about the embarrassment which would ensue as a result of the media’s publication of his and his son’s financial affairs, the husband subsequently argued for an adjournment to deal with the issue of whether the media should be permitted to report the proceedings. A hearing was listed to resolve this matter.

Restrictive reporting

At this hearing, the judge prohibited the disclosure of all of the information relating to the matrimonial proceedings, save for:

• those matters permitted in respect of the divorce suit pursuant to section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926, and in respect of the divorce suit only;

• the fact and date of the financial remedy application and hearing; and,

• the fact and date of the settlement between the parties, but not the detail of that settlement.

This clarifies an ambiguous area of the law that, until now, has not been adequately addressed; namely, that the media will be allowed to attend financial hearings, but that there will be considerable restrictions on what elements of those hearings can be reported.

In financial proceedings, parties are compelled to provide full and frank disclosure of their finances, to enable the court to have a complete picture of the finances to reach a fair decision.

There is the well-known concept of an ‘implied undertaking’ (discussed at length in the judgment of Dame Elizabeth Butler-Sloss in Clibbery v Allan [2002] 1 FLR 565), that confidential information provided under the compulsion of the court, for example, in a Form E, will remain confidential until it passes into the public domain.

A v A successfully deals with the question of whether the presence of the media in the court room means that the confidential information has entered the public domain and whether, consequently, the implied undertaking ceases to have an effect.

As recently as five years ago, there was a convention of privacy within the family courts and it was argued that greater transparency was needed to comply with the principle of open justice and to promote public confidence in the family courts. Then, when the FPR 2010 came into force, it provided ‘duly accredited representatives of news gathering and reporting organisations’ with a right to attend ‘family proceedings’ for the first time (FPR 2010 r.27.11(2)).

Naturally, there are reporting restrictions, particularly in relation to children, but it has largely been assumed by the media that permission to attend such hearings equates to permission to publish the details of those hearings.

Salacious gossip

This can be seen in the recent surge in sensationalist media reports of celebrity divorces. Does it really instil greater public confidence in the family court system, or enhance a greater public understanding of that system, to report every financial detail of a celebrity divorce?

Can disclosing exactly how much Cheryl and Ashley Cole got as part of their divorce settlement be argued to be necessary in order to uphold the principle of open justice?

An issue raised by A v A is whether, ultimately, the fight for Times Newspapers’ right to report the proceedings was fuelled by a noble desire for an increasingly open and just society, or whether the motivation was the scandalous and, therefore, marketable nature of the material in question.

The judgment in A v A is significant because it goes some way towards answering these questions, relying on the principle of open justice, the judgment of Dame Elizabeth Butler-Sloss in Clibbery v Allan, and the conflict between article 6 (the right to a fair and public hearing), article 8 (the right to respect for private and family life) and article 10 (the right to freedom of expression) of the European Convention of Human Rights.

Two areas that the media had expressed an interest in reporting were what were described as ‘cosy financial arrangements’ and the husband’s business enterprise. In relation to both aspects, the husband’s evidence was given under compulsion by the court. Furthermore, publication by the media would have involved identifying unconnected individuals.

In considering these arguments and balancing them with the conflicting articles, the judge in this case felt that the balance favoured the maintenance of privacy.

In formulating this judgment, the judge contributes greatly to the development of this area of law, which attempts to reconcile the tension between what would appear to be an increasingly unfettered right of the media to report and a family’s legitimate right to privacy and confidentiality in relation to its financial affairs.

Sharon Sloam is a solicitor in the family department at Howard Kennedy LLP