FAMILY JUSTICE: OSTIIS APERTIS?[1]

Or a mantle of inviolable secrecy?[2]

A challenge to those who would keep the doors closed

This is a guest post by Sir James Munby, former President of the Family Division

On 28 October 2021 the President published the outcome of his Transparency Review: Confidence and Confidentiality: Transparency in the Family Courts. What he said was very welcome, in particular the views expressed in para 22: 

“It is no longer possible to rely upon the factors against more openness to prevail so that the Family Court continues to be an exception from the ordinary imperative for open justice. The extent of the jurisdiction of the Family Court, and the volume of its caseload, means that the impact of its work is now felt by many, in a way which will have been beyond the contemplation of legislators over 60 years ago in 1960. The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects.”

Especially to be welcomed was the plain recognition that there is no longer room for exceptionalism in the Family Court. We do not inhabit some desert island free from “the ordinary imperative for open justice.”

The President called (Review, para 63) for “a period of accelerated change” and as an important part of the machinery for achieving that set up his Transparency Implementation Group. No doubt the President is doing all he can, but one cannot help noticing the slow pace of its work and the unfortune fact that too few of its proposals have yet seen the light of day, 14 months after the President pronounced.  

As we enter 2023, thirty years after the need for reform was first canvassed – for it was In August 1993 that the Lord Chancellor’s Department, as it then was, embarked upon a public consultation with its Review of Access to and Reporting of Family Proceedings – we stand at last on the brink of radical and fundamentally important change. Much has been done. More remains to be done. I venture to take stock, considering some important developments since the President’s announcement in October 2021.

There have been four important developments, which are best taken chronologically.

First, however, I need to emphasise that the problems about transparency which have beset the family justice system for decades are all traceable back to:

• Section 12 of the Administration of Justice Act 1960; and
• The elision in professional understanding and practice of those types of case which are covered by section 12 (and/or section 97(2) of the Children Act 1989) with those types of case which are not. The cases in the former category are subjected to strict statutory secrecy. Cases in the latter category are subject to no such restrictions. Yet the practice has been to treat them as if they were. Hence in such cases:
  • the application of a mordant rubric to the judgment threatening imprisonment if a word is breathed about the case;
  • the implicit threat that if a party speaks to anybody during the proceedings they will be in trouble; and
  • currency of the trope that parties to financial remedy proceedings have an “entitlement to privacy”.

All these heresies have their root cause in the elision mentioned above.

The first development: Mostyn J in the Financial Remedies Court

First, there was the important sequence of judgments by Mostyn J addressing – one is tempted to say denouncing – what he calls a “culture of secrecy” in the Financial Remedies Court which is, he asserts both unprincipled and, indeed, unlawful: on 1 November 2021 BT v CU [2021] EWFC 87, [2022] 1 WLR 1349, paras [100]-[114], next A v M [2021] EWFC 89, [2022] 1 FCR 445, paras [101]-[106], and Xanthopoulos v Rakshina [2022] EWFC 30, [2022] 2 FCR 712, paras [74]-[141], culminating on 13 June 2022 with Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370; see also his judgment in Aylward-Davies v Chesterman [2022] EWFC 4, paras [26]-[31]. On 29 July 2022 he extended his analysis to the Court of Protection: Re EM [2022] EWCOP 31, [2022] 4 WLR 101, paras [40]-[46].

These judgments have raised very serious questions about the practice of anonymising judgments in financial remedies cases and have given rise to significant controversy.

So what is the ‘Mostyn thesis’ as I venture to call it?

It can, I think, be reduced to seven key propositions.

Proposition (1): Scott v Scott [1913] AC 417and the subsequent case-law establishes that:

• It is not, as such, a contempt of court (a) to publish an account of what has gone on at a hearing of a family case in private or (b) to publish a judgment in a family case delivered in private or (c) to identify the parties in an anonymised family judgment.
• Litigants, even in a family case heard in private, have the right to talk about the case; and a judge has no power to prevent them doing so.

This is subject to any statutory provision to the contrary, and to the implied undertaking not to make ulterior use of documents disclosed to a party by their opponent.

Proposition (2): For present purposes, both the Judicial Proceedings (Regulation of Reports) Act 1926[3] and section 12 of the Administration of Justice Act 1960 can be ignored.[4]

Proposition (3): The Human Rights Act 1998 is of crucial importance for two reasons:

• First, and of central importance, questions of transparency and anonymity fall to be resolved by having regard to and evaluating, in accordance with the ‘balancing exercise’ mandated by the decision of the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, the interests of the parties and the public as protected by Articles 6, 8 and 10 of the Convention, considered in the particular circumstances of the case.
• More specifically, the right of litigants to speak about cases heard in private is protected by Articles 8 and 10, albeit now qualified by “the need to protect the rights of others who are participants in the “story”.” Indeed, “the right to tell one’s own story is likely to carry considerable weight.”

Proposition (4): In a financial remedy case heard in private the standard rubric[5] is completely ineffective to prevent full reporting of the proceedings or of the judgment; it is not worth the paper it is written on.[6]

Proposition (5): It follows that if there are to be enforceable restrictions on publication or on identification of the parties or on a litigant speaking out:

• The court must make a reporting restriction order (RRO).
• The court must first undertake the In re S ‘balancing exercise’.

As Mostyn J put it in Gallagher v Gallagher, para [81]:

“the standardised anonymisation of judgments is unlawful and … a reporting restriction or anonymisation order can only be made in an individual case where it has been applied for, and awarded, after a full Re S balancing exercise.”

Proposition (6): The sweeping statements of principle in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, and Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427, usually treated as justifying current practice are obiter dicta[7] and wrong and have in any event been overtaken by subsequent developments.[8]

Proposition (7): A change in the law to provide for reporting restrictions or anonymity without going through the process of making a RRO having first undertaken the In re S ‘balancing exercise’, cannot be effected by rule changes; primary legislation will be required.[9] As Mostyn J said in Gallagher v Gallagher, para [85]:

“to create a scheme providing for standardised anonymisation of financial remedy judgments will require primary legislation.”

The Mostyn thesis – some questions: I pose three obvious questions:

• Has Mostyn J got the law right? I believe the answer is simple: the law is as Mostyn J has laid it down. The challenge for those who disagree is to identify which of the seven propositions is erroneous, and why.
• If not, where has he gone wrong, and what is the law? The burden is on those who differ from him to identify precisely where Mostyn J has gone wrong, and why, and to set out what they believe the law to be.
• If the law, whatever it may be, is not satisfactory, what ought it to be? In my view the law is satisfactory, so I leave it to others to set out why it is not and what ought to be done.

I have previously considered the Mostyn thesis on a number of occasions. I refer to two in particular. In Some Sunlight Seeps In [2022] FRJ 79, I asserted that Mostyn J was completely right in the views he had expressed, and I provided additional reasons in support of those views. I continue to believe that the Mostyn thesis is correct. Subsequently, on 26 September 2022 I submitted to the Law Commission a Memorandum dealing with eight topics which I invited the Commission to consider as part of its Contempt of Court Project[10] and in which I reiterated my support for the Mostyn thesis. For present purposes I draw attention to two matters on which I urged the need for reform:

• First, I argued that the existing rubric should be abolished in financial remedy cases at the earliest opportunity. It is, I said, a brutum fulmen, thoroughly misleading and almost certainly unlawful.
• Secondly, I argued that the Judicial Proceedings (Regulation of Reports) Act 1926 should be repealed in its entirety. Section 1(1)(a), I said, is a dead letter, is anachronistic in modern conditions and serves no useful purpose. Acknowledging the continuing controversy as to the meaning and effect of section 1(1)(b) (as to which see Xanthopoulos v Rakshina, paras [129]-[134] and my article Some Sunlight Seeps In [2022] FRJ 79, 84-85), I said that, with the recent implementation of divorce law reform and, separately, the administrative separation of the processes of divorce, etc, from financial remedies proceedings, section 1(1)(b) no longer serves any useful purpose.  

The second development: a new regime for the remote observation of hearings by journalists and legal bloggers

Secondly, with effect from 28 June 2022 an entirely new regime for the remote observation of hearings by journalists and legal bloggers was introduced under the newly inserted section 85A of the Courts Act 2003, augmented by the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (SI 2022/705) and Practice Guidance (Open Justice: Remote Observation of Hearings) [2022] 1 WLR 3538. The four key elements of this regime are that:

• It applies to all courts and types of case to which the media have access, even if (as with children cases in the family courts) the general public does not.
• It exists “for the purpose of enabling persons not taking part in the proceedings to watch or listen to” them: section 85A(2). “So it is not designed for those taking part in the proceedings. Other powers cover remote participation:” Guidance para 5.
• It is not confined to remote hearings; it applies to remote observation of in-person and hybrid hearings as well: Guidance para 3. This is crucial.
• It is not confined to hearings in public. It applies equally to “family proceedings to which the media or researchers are admitted under FPR r 27.11(2)”: Regulation 2(b) and the Guidance para 6.

Thus, and this is the crucial point for present purposes, the regime exists to enable journalists and bloggers to attend cases remotely, including cases heard in private in family courts, even if the hearing itself is in-person.

There is heavy emphasis in the Guidance on the importance of permitting remote observation under this new regime (Guidance paras 2, 17):

“Open justice has been a fundamental principle for centuries. The principle is a broad one, but at its core has always been a right of access to a public hearing.”

“Decision-makers must give due weight to the importance of open justice. This is a mandatory consideration. Open justice serves the key functions of exposing the judicial process to public scrutiny, improving public understanding of the process, and enhancing public confidence in its integrity. Remote observation can promote all those purposes. Access for reporters, legal commentators and academics is likely to do so. Judicial office holders may take as a starting point that remote access for other observers is desirable if they would be entitled in principle to have access to a courtroom in which the hearing was taking place, and giving them remote access is both operationally feasible and compatible with the interests of justice.”

It is important to note that the decision whether or not to permit remote observation is (a) always a matter for the judge (b) having regard to all the circumstances in the individual case (Guidance paras 16, 19, 23):

“The decision whether to make any and if so what direction for remote observation will always be a judicial decision not an administrative one … the ultimate power and responsibility for a decision on remote access lies with the judicial office holder in the individual case.”

“Decision makers must give due weight to all the relevant circumstances, including the factors identified in the Regulation … All circumstances have to be considered.”

“The ultimate decision will inevitably depend on the nature of the jurisdiction, the particular resources available at the relevant time, and the specific facts and circumstances of the case.”

The importance of this fundamentally significant reform cannot be over-emphasised. Let me elaborate.

As long ago as 2010 in my Hershman-Levy Memorial Lecture Lost Opportunities: law reform and transparency in the family courts [2010] 22 CFLQ 273, I drew attention to the limitation in the ill-conceived and ill-fated Children, Schools and Families Act 2010 (happily never brought into force) that journalistic freedom to publish family proceedings was confined to those “observing or listening to the proceedings when attending them.” I quoted Lucy Reed’s penetrating comment in her Publication of Information: Children, Schools and Families Act 2010 [2010] Fam Law 708, 712, that:

“In the context of the current national crisis in the newspaper industry it will be interesting to see how many national – let alone local – papers are able to satisfy the requirement to attend court in order to source information for the purposes of publication. It may be that in the current economic climate the journalistic resources are simply not deployed for these purposes except in very few cases.”

If anything, the problem has only worsened in the intervening years.

Recent years have seen the emergence of a new breed of tweeters and bloggers (lawyers and non-lawyers) and freelance journalists whose work is transforming knowledge and understanding of the family justice system. Their work is characterised by a real understanding of the system and a desire to explore the realities of its workings. Often very critical – justifiably so – their approach is, however, responsible and directed to explaining and improving the system. This new breed of tweeters, bloggers and freelance journalists is far removed from the traditional stereotype. They are informed and diligent. And, crucially, their concern is with the facts, with the truth; indeed, it is their very inability to get to the facts that makes them so critical of the system. We can therefore ill afford to dismiss what they are saying.

The opening up of the Court of Protection effected by the Court of Protection Rules 2017 Rule 4.3 and Practice Direction 4C, Transparency, led to much greater outside interest in and reporting of what the Court of Protection is doing, extending far beyond the traditional legal reporting and analysis of published judgments. The blogs and tweets published by the Open Justice Court of Protection Project – Promoting Open Justice in the Court of Protection are important as showing the way ahead, not least because the distinguished commentators who are the Open Justice Court of Protection Project ¬– Professor Celia Kitzinger and Gill Loomes-Quinn – are neither lawyers nor journalists; they attend court as members of the public.

Wrapped up in this is a profoundly important point about remote working. Professor Kitzinger reported (@KitzingerCelia, 9 September 2021) that, in consequence of the remote working introduced during the COVID pandemic, she had now ‘attended’ no fewer than 223 remote hearings in the Court of Protection. It would have been impossible for her to have attended that number of hearings if they had not been remote. Bloggers and freelance journalists have neither the time nor, I imagine, the financial resources to spend their lives traipsing round the country to watch traditional – in the new terminology, in-person – hearings. Remote working vastly enhanced the ability of bloggers and journalists to ‘attend’ hearings and was thusa vital tool in making the courts more accessible to the public during the pandemic.

In the same way, under the new permanent arrangements, Remote working will enhance the ability of bloggers and journalists to ‘attend’ hearings and is thus a vital tool in making the courts more accessible to the public.

The third development: the Reporting Pilot

Thirdly, steps are being taken, initially by means of a pilot at the family courts in the DFJ areas of Cardiff, Leeds and Carlisle, to tackle a long-standing problem which has gravely inhibited the proper reporting of family cases about children. Since 2009, accredited journalists, and more recently legal bloggers as defined in FPR 27.11(2)(ff), (7), and PD27B paras 4A and 5A, have been entitled, subject to limited exceptions, to attend private hearings in all family cases. However, in family cases about children section 12 of the 1960 Act for all practical purposes prevents them reporting what they observe and, unless they can persuade the judge otherwise, they have no right to see any of the court documents. The consequence is that reporting is usually confined to publishing what the judge has chosen to put in a judgment which he permits to be published.

On 29 November 2022 the President announced the Reporting Pilot and published detailed Guidance. Attached to the Guidance was the draft standard Transparency Order which, subject to modifications to meet the requirements of the particular case, will be made at the beginning of the hearing.

Although the Pilot has been designed “to allow reporting of family proceedings as the default position”, it applies, broadly speaking, only to children cases (including cases under the inherent jurisdiction) and not to financial remedy cases or cases under the Family Law Act 1996: Guidance, paras 4, 28-29 – rightly so because the whole structure of the Pilot, appropriately geared around section 12 of the Administration of Justice Act 1960, is for that very reason completely inapt for financial remedy cases.

The fundamental principles of the Pilot are explained in Guidance, paras 8-9:

“8        The aim of the [Pilot] is that in the designated courts, accredited journalists and ‘legal bloggers’ (i.e. ‘duly authorised lawyers’ for the purposes of Family Procedure Rules 2010, r.27.11) will be allowed to report on what they see and hear in court (“the transparency principle”).

9          All reporting will be subject to the principles of protection of the anonymity of any children involved unless the Judge orders otherwise (“the anonymity principle”).”

The Transparency Order: There are two core provisions. The first, utilising section 12(4), largely disapplies section 12 of the Administration of Justice Act 1960; the other provides for disclosure of documents.

Paragraph 12 of the Transparency Order provides that:

“A pilot reporter[11] may publish any information relating to the proceedings save to the degree restricted below.”

This is qualified by paras 13 and 15:

“13      No person may publish any information relating to the proceedings to the public or a section of it, which includes:

a. The name or date of birth of any subject child in the case.

b. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;

c. The name of any person who is a party to, or intervening in, the proceedings;

d. The address of any child or family member;

e. The name or address of any foster carer;

f. The school/hospital/placement name or address, or any identifying features of a school of the child;[12]

g. Photographs or images of the child, their parents, carer or any other identifying person,[13] or any of the locations specified above in conjunction with other information relating to the proceedings;

h. The names of any medical professional who is or has been treating any of the children or family member;

i. In cases involving alleged sexual abuse, the details of such alleged abuse;

j. For the purposes of s.97(2) Children Act 1989, any other information likely to identify the child as a subject child or former subject child.

15        For the avoidance of doubt, no body, agency or professionals may be identified in any information relating to the proceedings published to the general public or a section of it by a pilot reporter, save for:

a. The local authority/authorities involved in the proceedings;

b. The director and assistant director of Children’s Services within the LA (but usually not the social workers working directly with the family, including the Team Manager);

c. Cafcass (but usually not the Guardian appointed for the Child);

d. Any NHS Trust;

e.Court appointed experts (but not treating clinicians or medical professionals);

f. Legal representatives and judges;

g. Anyone else named in a published judgment.”

Views may differ as to the detail of paras 13(h) and 15(b), (c) and (e), but these are comparatively minor quibbles. Overall, paras 12, 13 and 15 mark a massive and very welcome shift in approach and provide an admirable basis for the Pilot.

Disclosure of documents is dealt with in para 16 of the Transparency Order:

“A pilot reporter who attends a hearing[14] in family proceedings in accordance with FPR r.27.11, or who indicates in advance that they wish to attend a hearing, is entitled to see, quote from, or publish:

a. Documents drafted by advocates (or litigants if a party is self-representing): i.e. Case outlines, skeleton arguments, summaries, position statements threshold documents and chronologies.

b. Any indices from the Court bundle.

c. Any suitably anonymised Orders within the case.” 

As a starting point for the purposes of the Pilot this also is most welcome. No doubt in time consideration will be given to appropriate additions to this list.

Limitations in the Pilot: Thus far, what is proposed for the Pilot is wholly admirable. The Pilot represents a huge step forward in bringing about transparency in children cases. The President and his Transparency Implementation Group under the leadership of Lieven J are to be warmly commended. There are, however, I have to suggest, two serious flaws in the Pilot scheme.

• It is the Transparency Order which, as will be appreciated, unblocks all the reporting and other restrictions that would otherwise apply. But according to the Guidance, para 16 (and see also para 44) the court will only make a Transparency Order “where a pilot reporter attends a hearing (remotely or in person).”
• Furthermore, the Guidance, para 48, provides that “If the hearing is an attended (as opposed to a remote) hearing, no additional provision for remote attendance by a pilot reporter will normally be made.”

The brute fact is that this is not consistent with either the spirit of even the letter of the new regime for the remote observation of hearings by journalists and legal bloggers. How can the blanket approach mandated by para 48 of the Pilot Guidance be squared with the case-by-case approach mandated by paras 16, 19, 23 of Practice Guidance (Open Justice: Remote Observation of Hearings)?

The effect of this is that except where the hearing itself is remote, there will be no Transparency Order unless at least one pilot reporter attends in person at the (attended) hearing.

It would seem that where, having overcome this hurdle, a Transparency Order has in fact been made, it can be taken advantage of by any accredited journalist or legal blogger who, although not attending, was entitled to attend the hearing.[15] But whatever confidence there may be in this argument (and views I suspect will differ) there is an ambiguity here that can only have a chilling effect: it may cause some editors to be reluctant to avail themselves of the benefits of the Pilot. That would be most unfortunate.

The fundamental problem with the Pilot remains. Given that there will be no facilities for remote attendance, the requirement that a pilot reporter actually attends will severely limit the utility of the Pilot. How many are going to trek all the way to Carlisle? Will the local Carlisle media attend? And how are legal bloggers and freelance journalists expected to take themselves, at great personal expense, to Leeds or Cardiff, let alone Carlisle? How much enthusiasm is there going to be in the media for the Pilot given this structural flaw? My worry is that if the Pilot is seen to have ‘failed’ through lack of take-up it will seriously set back the cause of transparency.

In relation to the media there is a further and very pressing problem: How are journalists and bloggers going to find out that there is a case before one of the Pilot courts which may be of interest and potentially worthy of reporting unless the court list is significantly more informative than it is at present? You simply cannot turn up ‘on spec’ and hope. How is the journalist, whether staff or freelance, going to be able persuade their editor that there is a story worth covering? This is a very important issue: for in the real world, the cost of travel can be overcome to some extent if the journalist is able to argue to the editor that they will get the story when they arrive.

I raise two further questions about the Pilot:

• What is meant by the phrase “the end of the hearing” in para 23 of the Transparency Order?[16] The end of that particular day? The end of the final day of the hearing – and if so what if the case is adjourned part heard? Or when judgment in relation to that hearing is given – and if so what if judgment is reserved? There is an ambiguity here which, again, may make some editors hesitate.
• Is the premise underlining the Guidance, para 26,[17] correct as a matter of law? I consider this below.

The fourth development: the re-writing of Financial Remedies Practice

The final and most recent development relates to that important and definitive work of reference, the annually revised Financial Remedies Practice.

Financial Remedies Practice 2022/23, published in May 2022, contained at paragraphs 27.89- 27.159 a lengthy discussion of the applicability of the open justice principle to financial remedy proceedings. On 9 January 2023[18] the authors announced their decision that this section needed to be rewritten from scratch for the 2023/24 edition, expected to be published in April 2023. That work having been completed the new replacement text was published as an attachment to the announcement.

The rewritten section contains a full analysis of the rules and case-law concerning open justice in the Financial Remedies Court. In substance it adopts the Mostyn thesis, but includes the following important matters not considered before either by Mostyn J in his judgments or by the authors of Financial Remedies Practice:

• The interrelationship between, and significance of, FPR 7.30 and CPR 39.2.
• The decisions of the Supreme Court in A v BBC [2014] UKSC 25, [2015] AC 588, and of the Court of Appeal in In re the Will of HRH Prince Philip, Duke of Edinburgh (decd) [2022] EWCA Civ 1081. The particular importance of these for present purposes is two-fold:
  • They explain the meaning and effect of section 11 of the Contempt of Court Act 1981 (a topic previously little dealt with in the authorities).
  • They demonstrate the error in the premise underlying FPR PD 12I, my decision in Re P (A Child) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, and, indeed, the Pilot Guidance, para 26; namely that section 12(2) of the Human Rights Act 1998 applies to an application for a generalised contra mundum or anonymity order. Such an order does not come within section 12(2) and there is therefore no obligation to notify the media before seeking or making the order.
• The new regime for the remote observation of hearings by journalists and legal bloggers as described above.

The announcement went on to refer to the formation by the President of the FRC subgroup of the Transparency Implementation Group, whose terms of reference are:

“to consider all aspects of Transparency as far as it concerns the work of the Financial Remedies Court and to report as to suggested ways forward.”

Its report, we are told, is expected to be issued in February 2023 and, as the authors rightly comment in their announcement, “will be highly influential in shaping how the principle of open justice is applied in financial remedy proceedings in the future.” They go on:

“The authors and publishers of FRP have therefore decided to publish the section now in order that the subgroup can consider the issues of law raised in it, and any reaction to it by commentators and the public generally, before reaching its conclusions.”

The way forward: remote observation of hearings and the Reporting Pilot

I have little to add to what I have already said. So far as concerns both the new regime for the remote observation of hearings by journalists and legal bloggers and the Reporting Pilot the imperatives are:

• To encourage the maximum uptake by journalists and bloggers of these new opportunities.
• To ensure that HMCTS puts in place the electronic and other administrative arrangements which are vital if the new regime is to work as intended.
• To improve the way in which cases are listed to provide sufficient information to enable journalist and bloggers to identify those cases which may be of interest and potentially worthy of reporting.   

So far as concerns the Reporting Pilot the most pressing imperative must be to align it with the spirit and, mutatis mutandis, with the letter of the new regime for the remote observation of hearings by journalists and legal bloggers as set out in Practice Guidance (Open Justice: Remote Observation of Hearings). This, I suggest, is demanded both as a matter of overriding principle and to maximise the prospect of the Pilot actually succeeding in its objectives.  

The way forward: practice in the Financial Remedies Court

The FRC sub-group of the Transparency Implementation Group faces a vitally important if daunting challenge. The Mostyn thesis can no longer be side-lined, as if by ignoring what he is saying it will somehow go away. We can no longer comfort ourselves with the nostrum that present practice reflects how we have always done these things. That is not merely bad law, it is bad history. The FRC sub-group, if its recommendations are to carry conviction, has to grapple with the Mostyn thesis:

• Has Mostyn J got the law right? 
• If not, where has he gone wrong, and what is the law?
• The challenge for those who differ from him is to identify precisely where Mostyn J has gone wrong, and why, to identify which of the seven propositions is erroneous, and why, and to set out what they believe the law to be.
• In particular, the FRC sub-group must engage with each of propositions (1), (4), (5) and (7).
• The FRC sub-group must also engage with the re-write of Financial Remedies Practice, in particular those aspects to which I have drawn attention.  

The re-written Financial Remedies Practice (new para 27.185) says that:

“It is to be hoped that the [FRC sub-group] report, expected to be published in February 2023, will address the key question of whether anything short of primary legislation can provide for automatic anonymisation in financial remedy cases. If it is correct that as a matter of law full freedom of expression and full reportability is the default, and that anonymity can only be imposed individually on a fact-specific basis, then it would surely be beyond the powers of the Rule Committee to reverse this, even on a pilot basis, and to provide for a default of general anonymity with names being named only exceptionally. Such a course would, in effect, be to extend the reach of s.12(1) of the Administration of Justice Act 1960 to all forms of financial remedy proceedings and would turn innocent disclosures into punishable contempts. This is not permitted by s.12(4).”

I agree. I add that it would be a highly retrograde step if, 110 years after Scott v Scott, general anonymity was imposed on all financial remedy cases as a class.  

There is another topic which the FRC sub-group may wish to consider.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are triable in both the Chancery Division and the Family Division and, it is important to note, under the same procedures, for in both Divisions the relevant rules are the Civil Procedure Rules.

One might expect therefore that, in matters relating to anonymity and other aspects of transparency, practice would be the same in both Divisions.

Not a bit of it!

Study of the judgments in 1975 Act cases published on BAILII reveals 44 such judgments in the Chancery Division and 14 in the Family Division. As one might expect, none of the 44 cases in the Chancery Division was anonymised (with one exception where the claimants were children and an anonymity order was made under section 39 of the Children and Young Persons Act 1933) and none was subject to a rubric. Of the 14 judgments from the Family Division, 4 were wholly or partly anonymised and 6 were subject to a rubric, including, almost incredibly, 3 where the judgment had been delivered in public (this is nonsense: see the discussion in in Some Sunlight Seeps In [2022] FRJ 79, 90, of Re X (A Child) (No 2) [2016] EWHC 1668 (Fam), [2017] 2 FLR 70).

Unsurprising as it may be to the weary cynic, this hardly shows the Family Division in a good light. It merely demonstrates the continuing vigour of ‘desert island syndrome’ compounded by egregious examples of the inveterate misunderstandings which still bedevil this whole topic.

I end by referring again to the enduring currency of the trope, fostered by certain judges, that parties to financial remedy proceedings have an “entitlement to privacy”. I have bolstered the already irrefutable arguments of Mostyn J that there is no such entitlement. I remind my readers that in Scott v Scott Fletcher Moulton LJ was of the view that “nothing would be more detrimental to the administration of justice in any country than to entrust the judges with the power of covering the proceedings before them with the mantle of inviolable secrecy.” Lord Shaw went further and proclaimed that an order whereby “proceedings in an English Court of justice shall remain for ever shrouded in impenetrable secrecy” was a “usurpation” – a result which was exactly the same as would have been achieved under “the genius and practice of despotism”, and which “shifted the foundations of freedom from the rock to the sand.”   

These are strong words, but they are as valid today as they were 110 years ago. Fundamentally, the House of Lords was reminding us that publicity in the administration of justice is one of “the surest guarantees of our liberties”, and that secret justice is “an attack upon the very foundations of public and private security”. It is to these guarantees of our liberty, and to these foundations of our security, that the adherents of the “entitlement to privacy” must address their arguments. 

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[1]                See Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370, para [11], citing Daines Barrington (1766).

[2]                See Fletcher Moulton LJ in Scott v Scott [1912] P 241, 274.

[3]                Even if the 1926 Act applies to ancillary relief proceedings, which is exceedingly doubtful, sections 1(b)(i) and 1(b)(iv) specifically exclude from the ambit of the statutory restrictions on publication “the names, addresses and occupations of the parties and witnesses” and “the judgment of the court and observations made by the judge in giving judgment.”

[4]                Section 12 applies to children proceedings (including financial cases under Schedule 1). Otherwise, it applies only to proceedings which “relate wholly or mainly to the maintenance or upbringing” of a child. Thus, it does not apply to ancillary relief proceedings except in the very rare case where the issue solely or mainly concerns child maintenance, such as an application to vary an existing child maintenance order. And, in any event, even in a case where section 12 does apply, it does not prevent identification of anybody involved in the proceedings, not even the children.

[5]                It has been the practice for the last twenty years or so to attach a rubric to anonymised judgments in the family courts. I set out the history in Some Sunlight Seeps In [2022] FRJ 79, 88-89. The present form of the rubric reads as follows: “This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”

[6]                The important point for present purposes is that the rubric is not an injunction and accordingly ‘works’ – has any legal effect – only in cases where section 12 of the Administration of Justice Act 1960 applies. To elaborate: The effect of section 12 is to make the publication or reporting of a judgment in a children case without judicial approval a contempt of court. The rubric is in two parts and serves two distinct functions. The first part has the effect of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt for publishing or reporting the judgment. But the second part makes that permission conditional: a person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric. In contrast, the rubric has no proper role to play in a financial remedy case because there is no statutory prohibition on the publication of a judgment in such a case handed down in private, and, absent any reporting restriction order, nothing to prevent anyone doing so: Absent any statutory prohibition, the first part of the rubric is unnecessary in such a case and, if nonetheless included, wholly redundant. The would-be publisher does not need the permission of the court to publish and can justify publication, and defend a complaint of contempt, without reference to the first part of the rubric. That being so, there is nothing for the second part of the rubric to bite on. Since the would-be publisher does not need the permission of the court gratuitously granted by the first part of the rubric in order to defend a complaint of contempt, he can publish without having to comply with the requirements of the second part of the rubric.

[7]                In both cases the ratio was that restrictions on publication or on identification of the parties are to be resolved having regard to and balancing the interests of the parties and the public as protected by Articles 6, 8 and 10 of the Convention, considered in the particular circumstances of the case.

[8]                Since April 2009, the landscape has been transformed. Subject only to narrowly defined exceptions, journalists (and now also authorised legal bloggers) have a right to attend proceedings in chambers. The rules conferring that right contain no prohibitions on what the journalist or blogger can publish. Note also that there is no breach of the implied undertaking if documents are supplied to a journalist or law reporter who is covering the proceedings.

[9]                This is because: to have teeth, rules would have to prescribe that to do whatever is prohibited is a contempt of court; such rules would make punishable as contempt something that is not presently so punishable; to make such rules is beyond the powers of the Rule Committee as conferred by sections 75 and 76 of the Courts Act 2003. So far as is material, those powers are confined to matters of “practice and procedure” and the “rules of evidence” and, so far as they relate to contempt, to rules which “authorise” the publication of information. None of this extends to enlarging the substantive law of contempt.

[10]              https://financialremediesjournal.com/content/law-commission-contempt-of-court-project-memorandum-by-sir-james-munby-26-september-2022.bb43e9337360430a99f52e33289f1179.htm

[11]              Note that these words are not qualified by the words “who attends a hearing” which appear in para 16.

[12]              This reads as if the words after the comma relate only to schools and not to hospitals or placements. Is this what was intended?

[13]              This expression is neither defined nor explained.

[14]              See fn 11 above.

[15]              I put it this way for a reason. Paragraph 5 of the Transparency Order (and see also the Guidance, para 12) provides that:

“In this order, “pilot reporters” means duly accredited representatives of news gathering and reporting organisations and duly authorised lawyers attending for journalistic, research or public legal educational purposes (legal bloggers) (together referred to in this order as ‘pilot reporters’) who are entitled to attend a hearing under r.27.11 of the Family Procedure Rules 2010 (‘FPR’).”

The words “lawyers attending for” are part of the definition in FPR 27.11 of a legal blogger. Therefore, these words do not limit the definition of “pilot reporters”, insofar as it applies to “duly accredited representatives of news gathering and reporting organisations” (ie, accredited reporters), to those who have actually attended the hearing. On the contrary, it is the words “who are entitled to attend a hearing (my emphasis)” which define the limitation. Note also that, as we have seen, whereas para 16 of the Transparency Order refers in terms to “A pilot reporter who attends a hearing”, para 12 (which is key) does not contain the limiting words “who attends a hearing.”

[16]              “Permission to report is not effective until the end of the hearing at which this Order is made.”

[17]              “The fact that the media are aware of the existence and terms of the pilot (which are publicly available), are able to identify the cases to which it applies from the published  list, and know in general terms what the terms of a Transparency Oder are likely to involve, and that the media may if they wish attend such hearings and make representations about the terms of any individual order are, in combination, sufficient to meet the notice requirements of s12(2) Human Rights Act 1998, and prior notice of the court’s intention making of making a Transparency Order is therefore not required.”

[18]         https://financialremediesjournal.com/content/announcement-financial-remedies-practice-2023-24.92e5ef08ed48426aa59263378879b371.htm