- The media in divorce courts – a blackmailers’ charter
- By Mark Harper and Peter Burgess
- The Times
- 23/04/2009 Make a Comment
- Contributed by: Daveyone ( 29 articles in 2009 )
Two family lawyers assess the impact of new rules allowing the media the right to attend all divorce court hearingsMark Harper and Peter Burgess
A revolution is afoot in the divorce courts. On Monday the media will have the right to attend all divorce court hearings whether they concern disputes about money or children. It’s not carte blanche for the media though. A successful application to exclude them, by one spouse alone, could deprive them entry. But at the same time parties will be allowed to disclose information more readily to third parties. The result? Extortion with the threat of public revelations unless enough money is paid: a blackmailers’ charter.
Wanting the public to understand better the workings of the family justice system is laudable. In practice, these rules will lead to more litigation and test cases as the media, ever keen for lurid tales of sex and money, and fascinated by disputes between celebrities, will want to maximise their right to attend court and report as extensively as possible.
Much of the workings of the divorce courts involve very personal private and financial information that is of no legitimate concern to anyone else. Why should the public be entitled to know if a man who works in the City but lives in a relatively modest house in Tunbridge Wells or Wimbledon happens to be a billionaire? What is the public interest in knowing the sexual predilections of divorcing spouses; what benefit is there in knowing whether a captain of industry enjoys wearing women’s underwear or a leading sportswoman enjoys lesbian sex? These are private matters. The burgeoning law of privacy in the UK protects the unauthorised disclosure of such matters where there is no public interest justification. But what may be interesting to the public is not necessarily of public interest.
There is talk of having to delay cases of great interest to the public if not public interest so as to find large enough courtrooms to accommodate vast numbers from the media who will want to attend. When the next McCartney or Madonna-type divorce takes place no doubt several hundred journalists will be hammering at the courtroom doors.
Divorcing spouses who believe that they have sensitive information in their possession will use it to extort the maximum financial settlement, on the threat — express or implied — that otherwise all may be revealed to the media in court. The rules provide for the media to be excluded from divorce hearings but the onus will be for the spouse to justify their exclusion, on limited grounds; in the interests of children, for the safety or protection of a party or witness, “for the orderly conduct of the proceedings, or if justice will otherwise be impeded or prejudiced”. Simply wanting to keep his or her personal life private will not be enough.
The judges will be placed in a difficult position being faced with a new regime in which the media has the right to attend. The media will want jealously to protect their right, often with deep pockets to fund test cases. The court staff will face the daunting task of trying to check whether everyone in the courtroom is an accredited journalist. Many applications will be made to exclude the media — these will clog up already overloaded court lists. We learnt from the recent Court of Appeal judgment that Brian Myerson made an application to the court in last November that is to be listed only in July to vary the terms of his settlement.
The rules intend to restrict the media in what they can report but in cases involving celebrities, large amounts of money or just simple salacious details, the temptation to leak the information will be great. Only if the media are completely excluded from a hearing can there be proper protection for the parties.
Although the rules provide for the disclosure of information to third parties only in children proceedings, parties will be confused what is permitted and when. The rules will allow for disclosure to any person “by confidential discussion, to obtain support, advice or assistance” in the case. This permits talking to almost anyone. The temptation for disgruntled parties to disclose information to their spouses’ business rivals or the tax authorities will be high and there will be confusion as to what is permitted if the media are allowed into court.
Unless these rules properly protect the parties, the rules are at risk of being in breach of Article 6 of the European Convention of Human Rights and the Article 8 right to privacy. Who will take the first test case? And who will be the first casualty of this revolution?
Mark Harper is a partner and Peter Burgess a solicitor at Withers LLP
A revolution is afoot in the divorce courts. On Monday the media will have the right to attend all divorce court hearings whether they concern disputes about money or children. It’s not carte blanche for the media though. A successful application to exclude them, by one spouse alone, could deprive them entry. But at the same time parties will be allowed to disclose information more readily to third parties. The result? Extortion with the threat of public revelations unless enough money is paid: a blackmailers’ charter.
Wanting the public to understand better the workings of the family justice system is laudable. In practice, these rules will lead to more litigation and test cases as the media, ever keen for lurid tales of sex and money, and fascinated by disputes between celebrities, will want to maximise their right to attend court and report as extensively as possible.
Much of the workings of the divorce courts involve very personal private and financial information that is of no legitimate concern to anyone else. Why should the public be entitled to know if a man who works in the City but lives in a relatively modest house in Tunbridge Wells or Wimbledon happens to be a billionaire? What is the public interest in knowing the sexual predilections of divorcing spouses; what benefit is there in knowing whether a captain of industry enjoys wearing women’s underwear or a leading sportswoman enjoys lesbian sex? These are private matters. The burgeoning law of privacy in the UK protects the unauthorised disclosure of such matters where there is no public interest justification. But what may be interesting to the public is not necessarily of public interest.
There is talk of having to delay cases of great interest to the public if not public interest so as to find large enough courtrooms to accommodate vast numbers from the media who will want to attend. When the next McCartney or Madonna-type divorce takes place no doubt several hundred journalists will be hammering at the courtroom doors.
Divorcing spouses who believe that they have sensitive information in their possession will use it to extort the maximum financial settlement, on the threat — express or implied — that otherwise all may be revealed to the media in court. The rules provide for the media to be excluded from divorce hearings but the onus will be for the spouse to justify their exclusion, on limited grounds; in the interests of children, for the safety or protection of a party or witness, “for the orderly conduct of the proceedings, or if justice will otherwise be impeded or prejudiced”. Simply wanting to keep his or her personal life private will not be enough.
The judges will be placed in a difficult position being faced with a new regime in which the media has the right to attend. The media will want jealously to protect their right, often with deep pockets to fund test cases. The court staff will face the daunting task of trying to check whether everyone in the courtroom is an accredited journalist. Many applications will be made to exclude the media — these will clog up already overloaded court lists. We learnt from the recent Court of Appeal judgment that Brian Myerson made an application to the court in last November that is to be listed only in July to vary the terms of his settlement.
The rules intend to restrict the media in what they can report but in cases involving celebrities, large amounts of money or just simple salacious details, the temptation to leak the information will be great. Only if the media are completely excluded from a hearing can there be proper protection for the parties.
Although the rules provide for the disclosure of information to third parties only in children proceedings, parties will be confused what is permitted and when. The rules will allow for disclosure to any person “by confidential discussion, to obtain support, advice or assistance” in the case. This permits talking to almost anyone. The temptation for disgruntled parties to disclose information to their spouses’ business rivals or the tax authorities will be high and there will be confusion as to what is permitted if the media are allowed into court.
Unless these rules properly protect the parties, the rules are at risk of being in breach of Article 6 of the European Convention of Human Rights and the Article 8 right to privacy. Who will take the first test case? And who will be the first casualty of this revolution?
Mark Harper is a partner and Peter Burgess a solicitor at Withers LLP
Source: https://business.timesonline.co.uk/tol/business/law/article6143251.ece?Submitted=true
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