When clients spill the beans

Family lawyers have been used to proceedings in chambers receiving little publicity - but a recent ruling may change that, writes Peter Watson-Lee

Can an aggrieved family law client run to the press and tell all about what went on before the judge? I suspect many family practitioners think this is just not allowed.

After all, these are 'family' proceedings, and the hearings are in chambers.The judgment by Mr Justice Munby in Clibbery v Allan and Another, handed down on 14 June in the High Court Family Division, shatters such comfortable notions.The case involved a woman whose application for an occupation order under part IV of the Family Law Act 1976 had been thrown out.

She went to the Daily Mail, which published direct quotations from the respondent's sworn written evidence under the headline 'I thought it was love, but I was no more than a sexual servant'.An ex-parte injunction was obtained, but when it came before Mr Justice Munby for extension he used the opportunity to review the whole area of confidentiality in family law matters.

His judgment was careful to distinguish children cases, where different rules apply.

That apart, however, he found there was no fundamental difference between the family division and the other divisions of the High Court.

The fact that the hearings were usually in chambers did not mean that what happened during the proceedings was confidential, nor that information about what occurs cannot be made available to the public.This was also the first opportunity for a review of the effect of the European Convention on Human Rights on the position.

Article 10 (the right to freedom of expression), article 8 (the right to respect for private and family life) and article 6 (the right to a fair trial) were balanced.

But his judgment remained unaltered.

There was no ground to continue the injunction to restrain further publication.There are some restraints in family matters.

There is an implied undertaking not to use documents provided under compulsion.

Children matters apart, the main restraint is under the little-known Judicial Proceedings (Regulation of Reports) Act 1926.

While this imposes some restrictions, it certainly does not prevent the essence of what has happened in chambers being revealed.While the judgment needs some study before clients rush off to the press, one can see it heralding an increase in press disclosure of family law proceedings.Of course, to family law solicitors confidentiality is paramount.

The thought of the press reporting family proceedings is an anathema.

The natural reaction is concern that this will heighten tension and make cases even harder to deal with.

How will solicitors and courts be able to get to the truth of matters if there is a risk that it could all end up in the newspapers? Unless privacy is maintained, publicity could become an unwelcome threat and a powerful bargaining tool.However, taken to the extreme, can we really say that family proceedings should be held in secret? Should a party to such proceedings never be allowed to tell anyone of anything that happened? Surely justice not only needs to be done, but needs to be seen to be done.

Indeed it is important that family justice is administered in public so that the process of family law is visible and amenable to comment and criticism.Mrs Clibbery's avowed intention of going to the press was so that other women could learn from her experience as to 'how little rights they really have'.

Indeed, one possible effect of greater publicity may well be to help educate the public a little about their rights and the process of family law.

The press may be mainly interested in nothing so high-minded.Greater publicity may also mean clients will have to be cautious about the allegations they make against each other, if there is a risk that they could end up in the press.What the case undoubtedly means is that even matrimonial lawyers will have to start brushing up their media-handling skills.Peter Watson-Lee is chairman of the Law Society's family law committee