Transparency in the FRC: the Workings of the TIG Sub-Group

Published: 14/06/2022 14:57

It is somewhat ironic, to say the least, that very few people outside our own number, know who is a member of the FRC sub-group of the Transparency Implementation Group (TIG), how we work, what we aim to achieve, how we hope to achieve it and when will all this happen. The aim of this article is to explain all of these issues in as open a manner as possible. Further, it is accepted that wide consultation must be a central part of our approach and the method of that consultation is set out below in the hope that we receive as many contributions as possible, from as wide a range of interest groups as possible.

How was this sub-group set up?

The President of the Family Division, Sir Andrew McFarlane launched the TIG in late 2021 following the Report on the Transparency Review in the Family Courts which was published on 28 October 2021. The conclusion reached in that report was:

'that the time has come for accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear. Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives. Openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality.'

The main focus of the Transparency review was upon children cases and not Financial Remedy proceedings and the initial sub-groups within TIG were all focussed on children work. At the same time as the Transparency Review report was published Mostyn J (as the National lead Judge for the FRC – as he then was) issued a consultation paper on a proposed standard Reporting Permission Order (RPO) in order to 'codify and clarify the existing rules concerning the reportability of financial remedy proceedings so as to achieve a better balance between privacy of the parties, on the one hand, and transparency and freedom of expression, on the other'. I do not intend to set out the detail of the proposed RPO in this article, but it included who could attend a hearing, what documents the press would have access to and what matters could be reported. The consultation period was to run until 26 November 2021, a period of 4 weeks.

There was a limited response to this consultation for various reasons. It also became clear that there was some disquiet within the profession concerning the working of the RPO and the substantial alteration to the previously held position. As a result, it was decided by Mostyn J that the matter should be considered more widely. The question was as to how this should occur.

In March 2021 I was asked by Mostyn J to chair a group to consider how the FRC should operate, in terms of use of remote hearings, after the pandemic was over (which was understood would be occurring in the summer of 2021 at the time!). It was then decided that the same group should consider any changes that could be proposed to improve the efficiency of the working of the FRC. A group was set up to consider these issues and we reported in May 2021 and October 2021 respectively. The group continued through to the end of 2021 in preparing a draft Practice Direction which was required if some of the recommendations were to be implemented and this was finally completed in the first week of 2022. I thanked all the members of the group for their hard work over the preceding 9 months and stated that they had all earned a rest. That ‘rest period’ lasted for 5 days before Mostyn J tasked the same group to consider the issue of Transparency within the FRC!

However, before we were able to hold our first meeting it was decided by the President and Mostyn J that it would be more appropriate for the group to be part of the wider TIG rather than operate as a ‘stand-alone’ group. The FRC sub-group was thus created in February 2022.

Membership of the FRC Sub-Group

There had been expressions of interest circulated for the TIG in November 2021 and there was an announcement of the membership on 6th December 2021. This was an open process. The same process did not take place for the FRC sub-group for the simple reason that the individual members of the group had already been in place for 10 months and we had been asked to consider the issue of transparency prior to being included within the TIG. It was agreed that the membership of the group could continue although there would need to be some additions in order to be able to consider the issues at hand.

The original group had been selected to ensure that there was a wide geographical spread (it is important to avoid being London centric) together with the full range of FRC work being covered. The group included all levels of judiciary – High Court, Circuit Judge, Recorder, District Judge and Deputy District Judge as well solicitors and barristers that dealt with the full range of FRC work including High Net Worth cases and the level of work undertaken by the vast majority of those involved in the FRC (i.e. the cases involving assets less than £500,000). The group now also includes specialist practitioners dealing with Chancery matters, QBD work and Court of Protection. There is also a press representative as well as Lucy Reed the TIG legal blogger representative. The full membership of the group is as follows:

Susan Bennett – District Judge – Lead Judge in FRC for Mid & West Wales

Henrietta Boyle – FRC Barrister- 1 Hare Court – secretary to the FRC sub-group

Sir Jonathan Cohen – High Court Judge

Deborah Dinan-Hayward – FRC Barrister – now at The 36 Group having practised in Bristol for many years – Deputy District Judge on Western Circuit

Sian Harrison – Editor PA law Service

Samantha Hillas QC – FRC Barrister St Johns Buildings, Manchester/Liverpool

HHJ Louise McCabe – Circuit Judge based in Wolverhampton – sits in the FRC in Birmingham

Harry Oliver QC – FRC Barrister – 1 KBW, London

Caroline Park – FRC Solicitor – Partner at Hughes Fowler Carruthers – London

Parishil Patel QC – Public Law Barrister including Court of Protection – 39 Essex Chambers, London

Lucy Reed – Family Barrister from St. John’ Chambers in Bristol and The 36 Group – sits as a Recorder and Deputy District Judge, legal blogger and Chair of the Transparency Project

Penelope Reed QC – Chancery Practitioner – 5 Stone Buildings – Recorder and Deputy High Court Judge

Helen Robson – Family Solicitor – Partner Caris Robson, Northumberland – sits as a Deputy District Judge

Emily Ward – Family barrister – Broadway House Chambers, Leeds – sits as a Deputy District Judge

Adam Wolanski QC – Barrister specialising in Defamation, Breach of Confidence, Media Law – 5RB, London

Terms of reference

The intention is to consider all issues of Transparency within the FRC alongside the issues that are being considered by the other sub-groups of TIG, which include one considering the anonymisation of judgments. The starting point (and indeed end point) in Children cases is undoubtedly that the names and identities of the children involved should remain confidential and as such there is no issue as to whether there should be anonymity. The same is not an agreed position within the FRC and as such this sub-group must consider different issues to the other sub-groups of TIG.

The terms of reference are wide:

'To consider all aspects of Transparency as far as it concerns the work of the Financial Remedies Court and to report as to suggested ways forward.
The areas to be covered will include, but are not limited to, the following:
  • Should FRC cases be heard in Private or in Open Court;
  • Should the parties remain anonymous;
  • What documents, if any, should be made available to the press/legal bloggers;
  • How should highly confidential information (including that which is commercially sensitive) be considered;
  • Contents of published judgments;
  • How to ensure a greater number of judgments in cases involving a lower level of assets, which are generally heard by the District bench can be published.
In making any recommendations the Sub-Group will consider whether any amendments to the FPR and/or primary legislation would be required to enact such recommendations.'

The aim is to submit the recommendations during the Autumn of 2022.

How are we approaching the task?

There are remote meetings on an almost monthly basis to consider how we should carry out the work. The first step in this process involves obtaining information as to the present approach taken in the FRC and elsewhere for all of the issues being considered by the group. In order to carry out this we are looking at the following:

  • What is the present law and Practice in the FRC;
  • How are such issues considered in the Chancery Division?
  • What is the approach in the QBD?
  • How are these issues dealt with in the Court of Protection?
  • What is the experience in jurisdictions outside of England & Wales?

To this information we will need to add the views of those involved in this work, directly and indirectly, which will be obtained by the consultation referred to below.

Impact of Xanthopoulos v Rakshina [2022] EWFC 30

On 12 April 2022, Mostyn J handed down judgment in Xanthopoulos v Rakshina [2022] EWFC 30. Mostyn J concluded; (i) that the default position is that information contained in financial remedy proceedings is reportable, and neither the proceedings nor judgments should be anonymised; and (ii) that to depart from the default position requires a judicial balancing exercise under Articles 8 and 10. The decision includes a historical analysis of transparency and is fully set out within a lengthy reasoned judgment.

It is not the task of the FRC sub-Group to set out the law as it presently stands. It is in a state of flux. There is a well-known difference of view amongst the High Court Bench that deal with such cases with many continuing to anonymise their judgments and others that support the stance as set out in this case. Our Terms of Reference set out our role as one to ‘consider all aspects of transparency’ and in so doing full consideration will be given to both sides of this legal argument in reaching the conclusions that we consider are most appropriate.

Anonymisation of judgments

There is a sub-Group of TIG, chaired by HHJ Reardon, that is dealing with the anonymisation of judgments in Children cases. It is not our intention to duplicate the work that is being carried out by that group but there are separate issues in FRC cases, if it is considered appropriate that FRC judgments should be anonymised. There are many assets, most notably private companies which must remain anonymous if there is not to be identification of the parties. Indeed, even a description of the activities of the company may well reveal the identity of the family involved. Further, there is the issue of how to deal with highly commercially sensitive material which may have to be disclosed within the proceedings.

The process of anonymisation can be time consuming and expensive. The recommendations that we make will need to include how these difficulties should be overcome in a cost effective manner.

Consultation

We are conscious that it is important that we consult as far and wide as possible. To this end we have prepared a questionnaire which can be accessed from this link https://forms.office.com/r/qufNyfapYE. The questionnaire can be completed in as little as 5 minutes, if the responses are limited to the multiple choice options. There is the option to add text in order to put forward a more detailed view. The consultation will be open from 1st June 2022 to 31st July 2022. We would urge as many people to respond as possible and the earlier this is done the better, as it will give us greater time to analyse the responses. Please complete the questionnaire now and encourage others to do so.

The questionnaire will be circulated amongst many professional bodies in order to ensure as wide a response as possible. This will not be limited to FRC practitioners but will also include Judges, Chancery lawyers, Pension lawyers and trustees, the press, mediators, Law Reporters, amongst others. Every single response will be considered by the group. It can be completed anonymously but it is helpful if e-mail addresses are included so that the individual can be contacted if further input is sought. The names of anyone responding will never be set out publicly.

Conclusions

It has never been the intention of our sub-group to be anything other than transparent as to our approach to this task. The apparent opacity has simply occurred as a result of the process through which we were created. The minutes of our meetings should be available on the webpage at Transparency in the Family Courts | Courts and Tribunals Judiciary.

Once all the information has been received and the responses from the questionnaires analysed, we aim to be in a position to make our recommendations in the Autumn. If there are any issues that you would wish to raise, then this can be performed through the questionnaire. Alternatively, any message sent to the President’s Office at pfd.office@judiciary.uk will be forwarded for our consideration. Alternatively it is possible to write to : President of the Family Division’s Private Office, RCJ, Strand, WC2A 2LL.

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