The Increasing Transparency in the Family Court – Putting the Genie Back in the Bottle

Goodman v Walker [2024] EWFC 212B

On 30th July 2024, following a 3-day hearing where Mr Walker was represented by Miss Saxton KC, HHJ Hess, lead Judge of the London Financial Remedies Court handed down judgement in the second set of proceedings between Kyle Walker and Lauren Goodman. The judgment was a wholesale justification of Mr Walker’s approach to the proceedings but gained significant media attention as Miss Goodman’s claims, amounting to treating Mr Walker as an “open cheque book” were rejected.

Unlike the first proceedings, neither Mr Walker nor Miss Goodman enjoyed anonymity. More significantly, neither did the children. This represents a significant development in the approach towards transparency and openness in Family Court proceedings in England and Wales. It is also a lesson to anyone who believes that they can put the genie back in the bottle privacy if forfeited by their own actions.

Unfortunately, those actions infect all those around them.

The transparency pilot, whilst not limited to London, has been running at the Central Family Court since 29 January 2024. It introduces a presumption that accredited media and legal bloggers may report on what they see and hear during the proceedings whilst (usually) adhering to strict rules of anonymity. In accordance with the guidance of the President, members of the press in attendance are entitled to receive copies of the opening skeleton arguments and the ES1 (undoubtedly a positive development which enables the press to follow the proceedings). In this case HHJ Hess made an interim transparency order which restricted reporting until the conclusion of the hearing. In the ordinary course the Pilot would then operate to allow reporting after the conclusion of the case, whilst preserving the anonymity of the parties and their children although the Court may direct otherwise.

Associated Newspapers, through their Counsel, argued that there should be modifications to the final transparency order to allow them to report the names of the parties, even going as far as to allow the children to be named and relied upon the extent of information already available in the media about both the parties and the children. Rejecting Ms Goodman’s arguments that the balance between Article 8 (respect for private life) and Article 10 (freedom of expression) weighed in favour of anonymisation HHJ said,

“It would be a nonsense, opening the court to ridicule, to try to redact or anonymise this judgment to prevent identification of the parties. Further, a perusal of the many hundreds of newspaper articles published about these matters clearly illustrates that the mother has not just cooperated with, but actively instigated, press coverage placing in the public domain her own children, the circumstances of their conceptions and what she thinks about the father. It sits ill for a person to come to court arguing for privacy for her children when, just a very short while earlier, she took a payment from the press to visit the European football championship with her son dressed in an England football shirt with the name ‘Daddy’ on the back, and to be willingly photographed doing this to provide journalistic fodder which the newspapers were only too happy to use. If the children suffer any harm from the publicity of these matters, it has already happened, and it will largely be the result of the mother’s own decisions and actions. For me, on the facts of this case, the balancing exercise must come down against the mother’s argument. For me, the right of the press to scrutinise and comment upon the court’s procedures and decisions, and what the mother has requested of the father and how he has responded, are on this occasion a greater priority”

Further justification for his decision is to be found at paragraph [95],

“I also consider it very likely, having heard her evidence, that the mother will be tempted, one way or another and whatever any transparency order says, to seek defiantly to put in the public domain her views about the court’s findings and also further views she may have about the father. In these circumstances it is my view preferable that anybody interested in the topic should have the opportunity to read the full independent account contained in this judgment before reaching any conclusions about what has happened”

Those words have proved prophetic.

Whilst HHJ Hess recognised that an order for full reporting would be rare, to those who advocate for transparency, it is likely seen as a positive step. It remains to be seen whether full transparency orders will be made more frequently but this decision certainly shows the increasing willingness of the Court to embrace transparency in a suitable case. No longer is it justice behind closed doors.

Litigants wishing to ensure privacy should explore non court dispute resolution (NCDR), through private FDRs or arbitration.