We’ve spotted an interesting decision from last month where a High Court Judge has published a judgment in connection with a jurisdictional dispute arising from a husband’s nullity petition, along with the names of both parties. The husband contended the wife’s divorce from her first husband could not be recognised by the English Court because it was a transnational divorce that did not comply with the complicated rules on recognition (the marriage was abroad, but the Talaq (islamic divorce) was pronounced in the UK). He argued that this meant that the court should declare the second marriage a nullity. The wife said the first divorce should be recognised, was valid, and that therefore there was no basis for an annulment. The issues the court was deciding at this hearing were whether or not the first divorce could be recognised – and whether the court dealing with the nullity application was actually allowed to deal with a decision about recognition of the divorce between the wife and another man. Because of the unusual nature of the case the Queen’s Proctor (basically the Attorney General) was involved, as they often are in any case where there is a complicated legal issue around validity of marriage / divorce.
The judge concluded that the court was allowed to decide the issue, and the decision was that the first divorce had not been valid. This meant the wife’s first divorce proceedings in the UK had been a nullity. Although the judgment does not say so in terms this presumably means that the subsequent marriage between the parties will be invalidated and the husband’s nullity petition will succeed.
The wife had objected to being named, on the ground that she would be ostracised and her life ruined by the community coming to know about the possibility she had been married to two men simultaneously (albeit the judgment makes clear this was not intentional).
We’ve decided not to link to this judgment or to name the parties, because the unusual feature of it is that the judge appears to have applied the wrong rules to the decision to go ahead and publish. We think we can tell the transparency aspect of the story without going there.
In this post, by the way, we’ve stuck to calling the parties the ‘husband’ and ‘wife’, as its a bit less confusing than ‘petitioner’ and ‘respondent’.
Privacy rules relating to Matrimonial Proceedings
The heading of the judgment tells us unequivocally that this case was dealt with in the Family Court (firstly because it says so and secondly because it has a ‘D’ case number, which identifies it as a matrimonial / divorce matter). The starting point is that applications for ‘matrimonial orders’ – which include nullity petitions – are dealt with under Part 7 Family Procedure Rules 2010.
Unlike most family proceedings, Rule 7.16 provides that the general rule is such matters will be heard in public:
7.16 General rule – hearing to be in public
(1) The general rule is that a hearing to which this Part applies is to be in public.
(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.
(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; or
(f) the court considers this to be necessary, in the interests of justice.
(4) A hearing of an application for rescission of an order by consent under rule 7.28 is, unless the court directs otherwise, to be in private.
(5) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.
In the judgment there is a short passage about the decision not to anonymise the judgment. However, in this section there the judge sets out a different rule entirely, namely Civil Procedure Rule 39.2:
39.2
(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’
consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).
(2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to
freedom of expression which may be affected.
(2A) The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a
hearing is held in private.
(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of
the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would
damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public
hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased
person’s estate; or
(g) the court for any other reason considers this to be necessary
to secure the proper administration of justice.
(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers nondisclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.
(5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4), a copy of the
court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.
This is puzzling because the Civil Procedure Rules simply don’t apply to the work of the Family Court.
If one compares the two rules, there is a much more robust approach to open justice in the civil procedure rules, and the circumstances where it will be appropriate to depart from it are quite heavily circumscribed, whereas the family procedure rules allow more flexibility and discretion. Under the FPR the judge is given a discretion to restrict disclosure of a party’s identity wherever that it is in the interests of that party. The equivalent provision in the CPR uses restrictive language rather than the language of a general discretion, and demands both that it is necessary to protect the interests of the party AND that it is necessary to secure the proper administration of justice –
The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers nondisclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.
The parties’ positions
As we’ve said, the wife objected to being named, for understandable reasons, as mentioned previously. The Queen’s Proctor sat on the fence and said it was a matter for the court. The husband however actively sought the naming of the parties in spite of what his wife said about shaming. Note that there is an oblique reference to Practice Direction 12J which suggests there were some allegations of domestic abuse made by the wife but we don’t know if they were tried or proved. This is the only reference to the FPR in the entire judgment. In arguing for naming he relied upon ‘the general rule’ that there should be non anonymisation. There is certainly no general rule in family proceedings that the parties should not be anonymised. In family proceedings generally the parties names are not published. The position is somewhat different in that minority of family court cases held in public, but even FPR 7.16 does not describe a ‘general rule’. Oddly, the judgments refers to the fact that but for covid the hearing ‘would have been in public’ without actually being clear about whether it was, in fact, held in public (hearings held remotely can still be held in public).
By the way, even if we are somehow wrong about Part 7 specifically applying to this case, almost every other part of the FPR provides for hearings to be in private and in those cases the general rule is very much for anonymisation. Either way, the CPR is not the correct set of rules.
Given that there is no reference to FPR 7.16 at all, it looks therefore as if the judge (who is a recent appointment with a civil background) was probably operating on the basis of a mistake as to the applicable rules. The judgment tells us that the judge received written submissions. The husband was in person, and would not necessarily be expected to be familiar with the distinction between the two sets of rules. According to the judgment, the wife was ‘assisted’ (not represented) by a person who provided detailed legal arguments, but who we cannot find listed on any register as a regulated legal professional. This probably means he was a paralegal given rights of audience for the purposes of this hearing. The Queen’s Proctor was represented by a (civil) barrister acting through the Government Legal Department. It seems very unlikely that the judge would not have mentioned FPR 7.16 if they had been aware of its application, so we think its likely the court just wasn’t pointed to it.
However, although the judgment makes clear that the judge considered the CPR rule and applied the more stringent CPR test, the conclusions suggest that the outcome would have been the same either way, since the judge concluded that the Wife’s interests did not require protection by anonymisation, and the judge sets out a proper balancing exercise (albeit a brief one). The judge said:
I accept there may be a considerable degree of embarrassment and some misplaced feeling of shame on her part but I must put in the balance the important public interest in there being an open debate about transnational divorces. The removal of parties’ names stifles open debate, there is less interest if the parties’ names are not disclosed….I understand the [Wife] feels genuine concerns and fears but what it comes down to is she is concerned about what people will say in
the community. If there is gossip, it can be answered by the [Wife] pointing out that she had no idea she was not divorced. She has not been prosecuted for bigamy, there is no shame in what happened to her. On the face of it her ‘first’ divorce was
conducted in ignorance of the law in this jurisdiction. Any gossip will blow over. In the balancing of these competing interests, the public interest in open debate trumps the Respondent’s concerns.
As far as we can tell media coverage of this case seems to be limited to the legal press in the UK and various publications in Pakistan / Islamic publications. Whether the judge’s optimism has been borne out, or the impact on the Wife has instead been as she feared is unknown.
Footnote
I’ve scratched my head about this judgment for a while before putting this post together. I’m 99% sure I’ve got it right and the FPR were the applicable rules – but it does appear that a High Court Judge and at least one other lawyer held a different view. We are all fallible. So, if anyone thinks I’ve missed something in terms of the applicable rules, do let us know and we will consider and correct as appropriate.