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Washing your dirty laundry in public?

8 April 2019

April French Furnell

When it comes to family law cases, the position on media reporting is as clear as mud, so much so that making a decision to talk to the media can mean couples are playing Russian roulette with the privacy of their financial and business affairs. Whilst most family cases remain private, there are situations in which talking openly to the media can resolve difficult problems, particularly for instance with child abduction. Citywealth’s April French Furnell spoke to leading family lawyers to explore when media can help, and when it is a hindrance.

Murky waters

“The law and practice around media reporting of family law cases is universally acknowledged to be an impossible muddle”, explains David Greer, a family law partner at newly launched firm, Katz Partners. “The position is so opaque that even experienced family lawyers and many judges have only an imperfect understanding of the subject”. He says, “The law emerges from an impenetrable tangle of statutes, one of which dates back to the 1920s, case law and judicial guidelines. Adding to the general confusion and uncertainty is a difference in opinion from High Court judges who handle the big money divorces.”

Emotional blackmail

The prevailing view among judges is that financial proceedings between divorcing couples are essentially private and media reporting should be restricted. That said, one judge, Mr Justice Holman, who deals with high value cases, takes the view that financial disputes should be heard in open court. This means the public are free to attend and the media are free to report everything they see and hear. The result? “Russian roulette”, announces Greer. “Anyone pursuing or defending a financial claim in the High Court is forced to play Russian roulette with the privacy of their financial and business affairs”. This transparency can also help apply left of centre pressure; a wealthier spouse may settle an unreasonable claim to avoid the risk of tabloid publicity. The other side of this coin is, that the weaker party can threaten to involve adverse publicity to encourage a recalcitrant spouse to play fair.

Good news

As for cases involving children, the starting point in the UK is that they are heard in private and are therefore confidential. Children cannot be identified either directly, or indirectly via their parents’ names or addresses, that is unless permission is obtained from the court to disclose any identifying information. For those involved in a child abduction case, “Publicising a family case can be the only means that someone whose child has been abducted by the other parent has of applying pressure and obtaining justice”, said Greer.

A matter of fact

Irwin Mitchell Private Wealth recently had experience of such a case, involving the Legal Blogging Pilot 2018 which allows, during a test period, authorised lawyers to attend court hearings as legal bloggers in a similar way to journalists. Ros Bever, national head of Irwin Mitchell Private Wealth’s divorce and family law team, spoke of their experience. “The high-profile case of missing child Olly Sheridan, who was on the run with his mother, was widely reported in national publications and social media. Because of the nature of this case, a fair amount of misinformation was spreading. The Transparency Project attended the hearings as part of the Legal Blogging Pilot and provided knowledgeable, balanced reporting on the details.”

However, The Legal Blogging Pilot which started on 1 October 2018 and concludes on 30 June 2019 has had mixed feedback. “It seems unlikely that the Legal Blogging Pilot is going to result in a vast body of material which will inform the public, but it is a start. Legal bloggers are often active on social media and their followings are growing, but they have nothing like the circulation of national newspapers and TV. However, they can help provide informed contradictions to misreporting”, explains Bever.

Another such case dealt with by Tammy Knox, a senior associate in the family law team at Penningtons Manches highlights how the media can be used to positive gain. “I assisted a mother, who was the left behind parent of a child abducted to Libya by the father, to obtain the court’s permission to be able to talk openly to the media about her case, and to post information online that identified the child, in an attempt to bring about the child’s return by putting pressure on the father.” The factors which might lead you to employ the media as a tool are if the abduction is to a country which is not a signatory to the 1980 Hague Convention on Child Abduction and there are no legal steps that can be taken to enforce a return in the other jurisdiction, or the child can’t be found because the abducting parent has absconded. These applications are highly likely to succeed, according to Knox. “This is particularly so in the modern age where social media can reach a global audience instantly, and therefore can be a really helpful tool”, she commented. 

Playing with fire

But before you embark on your own PR exposure campaign, there are a few things to consider. “In our view a client must fully comprehend the possible repercussions of handing their story over to the media. For any one, being involved in family proceedings is an emotionally demanding time. For high value divorces, breaking up is really hard to do. They require a high level of expertise to ensure that all the assets are dealt with and as a result these cases can go on for a long time. Before instructing a PR team, individuals should be aware that PR means attracting attention as well as deflecting it and they have no control over how the public will receive it. The press will run an individual’s ‘story’ as they choose and in 2019 news spreads fast.”, warns Rebecca Christie, an associate at Hunters Law. “Although the media are a plausible route, more often than not, discretion and confidentiality are the best ways to preserve a reputation and it is usually the safest path to tread”.

Go private

For those wanting to avoid the media, they may want to find an alternative to court. For those individuals, “the safest thing is to keep the case out of court by reaching a negotiated solution or by using arbitration as an alternative to court. Arbitration is entirely private and has other advantages such as flexibility and choosing the “judge” who will decide your case”, said Bever. Knox agrees: “Unfortunately, a lot of the mainstream media, know the lives of celebrities and those in the public eye, attract the most press attention. They are therefore more likely to be subject to applications for an order for publication. We are increasingly advising our clients to avoid the risk of unwanted media coverage by opting for Private FDRs (financial dispute resolution) and/or arbitration to resolve their disputes”.

It seems using the media can be a fruitful path but also alarming, in that if it turns against the individual using it, as the saying goes, mud sticks.

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