Keeping it in the family

22 October 2020

A family dispute is undeniably something most people would prefer to keep private, but for those in the public eye this may be easier said than done.

High Court Drama

In addition to matrimonial disputes or disputes involving children, high profile couples may find themselves in the civil courts for legal resolution of other related disputes. As we have seen in the recent claim brought by Johnny Depp against News Group Newspapers that involved his ex-wife Amber Heard it can cause quite a spectacle.

High profile couples going through a divorce and/or associated civil proceedings will often have to wade through paparazzi and journalists just to get into the court building (though this is a less visible issue in the midst of COVID-19 where many cases are being heard remotely). What hasn’t been impacted by the current climate is the public’s appetite for celebrity gossip, nor a judge’s ability to allow the media into hearings, meaning that famous figures still find their personal and private family matters plastered across social media and the newspapers.

Family matters can be fraught with emotion and confrontation. Intimate details may be published for all to see and heighten the distress to those involved. Ideally, people would prefer to keep such details of their private lives away from the prying eyes of the public, but is this even possible?

Privacy rules in family proceedings

The protection of children in family proceedings is of paramount concern and so the confidentiality of proceedings relating to children is fundamental. There are strict rules about when information relating to children proceedings can be disclosed and court hearings for child related matters are usually held in private. Conversely, matrimonial proceedings relating to divorce and finance are sometimes heard in public. This means that the evidence and judge’s decision will be published if the judge allows the media to be present at the hearing and permits publication. Whether or not the parties are anonymised or named is a matter for the Judge.

A handful of cases discussed below illustrate the Court’s recent approach to privacy in family court proceedings:

Journalist Barred

Last week, High Court judge Mr Justice Williams barred journalists from attending a private trial regarding the care of a child. The child’s father had been diagnosed with a depressive disorder and said that if the press attended he would be anxious. The child’s mother (and the press) objected. Mr Justice Williams ruled in the father’s favour after considering evidence from a psychologist. He concluded that the exclusion of the press from the trial was necessary for the father’s protection and was in the interests of the child. Mr Justice Williams said his decision on press exclusion could be published after a journalist argued it was a matter of public interest, but that the parties could not be identified in media reports.

 

Wholesale Disclosure

In August, a High Court judge rejected a freelance journalist’s application for ‘wholesale disclosure’ of evidence relating to a child at the centre of private family court proceedings. Appeal judges had overruled an earlier decision that the child should be placed for adoption after the child’s mother challenged the decision. Whilst the child’s mother consented to the disclosure, the judge refused the journalists request for disclosure but said that she should be allowed to see ‘limited aspects’ of the material. Journalists covering private family court hearings are not usually given access to documents and this application is thought to be the first of its kind.

 

Read All

Earlier this year, in the high profile dispute between the billionaire ruler of Dubai, Sheikh Mohammed, and his ex-wife, Princess Haya, the High Court handed down judgment establishing serious allegations (including the abduction of his daughters) made against Sheikh Mohammed by Princess Haya as fact. Sheikh Mohammed had tried, unsuccessfully, to prevent publication of this judgment handed down in the dispute about their children’s welfare. His appeal, aimed at keeping the judgment out of the public domain, was rejected after the court ruled that the case was in the public interest. He was found to have ‘not been open and honest with the court’ and that he continued ‘to maintain a regime whereby these two young women are deprived of their liberty’. The Sheikh has continued to insist that the case is a private matter and asked the media to respect the privacy of the family and not intrude into the lives of his daughters in the UK.

 

Divorce in other litigation

Various other legal issues can spring from divorce proceedings, illustrated by the Johnny Depp v News Group Newspapers Ltd case, possibly one of the most publicised celebrity court cases in recent years. Johnny Depp brought a defamation claim against News Group Newspapers Ltd and its executive editor Dan Wootton, relating to a 2018 article in The Sun newspaper that described Depp as a ‘wife-beater’. The article referred to fourteen incidents of domestic violence against Depp’s former wife, Amber Heard, and each have accused the other of various acts of domestic abuse during their two year marriage. Interestingly, Heard initially suggested she was subject to ‘confidentiality restrictions’ in a 2016 US divorce agreement which prevented her from giving evidence at trial. However, she has appeared at the High Court to give evidence, as has Depp, on subjects including their marriage, drug and alcohol abuse and mental health issues, all of which has been lapped up by the media and the public alike.

This case demonstrates how the breakdown of a marriage can spark other types of litigation, in this case a defamation claim, where for celebrities like Johnny Depp and Amber Heard the priority is usually preserving their reputation and public image.

As well as claims like this one, civil disputes linked to matrimonial or children disputes can include disputes relating to trusts, third party interests, inheritance or family businesses. Such proceedings can be even trickier to keep private than those in the family courts, which afford certain protections where children are involved or where cases are particularly sensitive.

Behind Closed Doors

Using different types of alternative dispute resolution (ADR) such as arbitration or mediation is one way of keeping a dispute off the front pages, in both family and civil proceedings.

Couples to matrimonial proceedings can choose to have their financial arrangements adjudicated in private by an arbitrator instead of a family court judge. Arbitration clauses are also often found in legal documents such as trust deeds and commercial contracts so this method is not limited to family proceedings.

Where there is no arbitration clause or other agreement to arbitrate, mediation can also be an effective ADR method. Mediation allows the parties to negotiate a settlement with the assistance of a neutral third party (the mediator) in a private and confidential setting.

For high net worth individuals and others in the public eye, taking steps to resolve private family disputes and other related issues using methods of ADR is a good way of keeping such disputes out of court and therefore out of the media spotlight. Parties can decide to pursue a form of ADR at any stage of the litigation process and costs can be awarded against a party who unreasonably refuses an offer to engage in ADR.

If you do find your family dispute splashed across the front pages, you can seek the advice of a media lawyer who will assist you with limiting (as far as is possible) what is being reported and managing the information exposed to the public eye.

Further information

If you would like to discuss any of the topics raised in this blog, please contact a member of our Reputation and Media team.

 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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