The unintended consequences of law – a postscript

Not long ago I wrote a tiresomely long post about what I will call the transparency in financial remedy (FR) cases, a topic about which there has been much recent debate (see Very Much Ancillary, published here and elsewhere). Others may quibble about the use of the term ‘transparency’ but to me it encapsulates a topic which has several components (open justice, accountability, privacy, freedom of expression). After many more words than I had intended to assemble I got down to the nub of it and suggested some rule changes as a possible way forwards.

Last week saw promulgation of Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52, a summary of which you can find here. In it Mostyn J makes the brave submission (hee hee) that I have fallen into error in my earlier article. In fact, on reflection, I think the error I had made was to be insufficiently clear about what I was actually proposing and about which bit of the multi-faceted problem that Mostyn J’s recent judgments bring us all, I was hoping to solve or ameliorate. I am going to boldly say that, notwithstanding that a bigger brain than mine is pulling a face at my suggestion, I don’t actually think I was substantively wrong. But nor is the position straightforward.

This post is an attempt to be clearer. And more concise.

So, what problem was I trying to solve? Or…what circle was I trying to square?

It seemed to me that one inevitable consequence of the recent batch of judgments from Mostyn J on these issues (wherein he says that the parties are not entitled to anonymity as of right or even as a default) was that there would potentially be a marked increase in the number of reporting restriction applications that would be made in FR cases – either during any period of uncertainty or going forwards if it became settled that Mostyn’s view was correct. I am working on the basis that it is unrealistic to think that there will be any swift falling of scales from eyes as all the litigants and lawyers up and down the land come to see that they and their clients must just accept public identification as an inevitable consequence of litigation. No, I recognise that in reality most litigants are still going to scramble to maintain their privacy where possible, and most lawyers instructed by them will fiercely defend such privacy any way they can think of. Such is the way of things. For some litigants staying under the radar will be better than making an application, but overall there is likely to be an upward trend in the number of applications.

Regardless of your view of the legal issues, this vista brings with it a number of unattractive resource consequences – both for the litigants themselves and for the system. Nobody really wants the system further swamped with applications if there is an easier (but also lawful) way of resolving these issues. In my last post I wondered if there was a different way to square the circle that ensured adherence to the law on open justice and privacy, without causing the system to further grind to a halt. The current rarity of publication by any FR judge below High Court level does limit the extent of the ‘problem’ for now, as many litigants will just keep a low profile in the hope of avoiding any press interest or publication at all. All well and good as long as the opposing party doesn’t decide to exercise a bit of leverage. But what will happen if and when the President’s aspirational 10% of judgments are published? And what will happen if other High Court judges follow Mostyn J’s lead (currently there isn’t much sign of that, but we will see).

So, with my best helpful face on, I looked at the Court of Protection as a possible model. I emphasise that I’m not a CoP lawyer. But as a transparency enthusiast I do watch CoP closely, largely facilitated by the Open Justice Court of Protection Project. In that court, PD4B provides that the court will ‘ordinarily (and without any application being made)’ make an order to sit in public and in the same order will provide for restrictions on the publication of information which will ‘ordinarily’ be in standard terms. Those standard terms provide for the anonymity of ‘P’, the adult lacking capacity whose interests are being considered. The rest of the PD sets out some useful pointers for what factors the court might consider in thinking about whether there is ‘good reason’ to do something different, and it gives some illustrative examples of what that something else might be (for example exclusion of the media for some or all of a hearing).

In FR proceedings the court is (per Mostyn J) already ‘in effect’ sitting in open court. I had envisaged a similar provision in the FPR that provided for an ‘ordinarily’ sort of scenario. If it can be lawfully done in the Court of Protection why can’t it be done in the FRC? (the question of whether a capacitous adult who elects to litigate ought generally to have anonymity at all is a slightly separate question on which there are a range of views, but I predicate this proposal on the basis that the preponderant view amongst family court judges, professionals and their clients is probably that they ought to. You can accuse me of backwards engineering, but this isn’t a judgment!)

Well. Those who have been following the thread of this through the various recent judgments will have noted the tendency for the whole jumper to unravel when you pull one loose end. And so, it seems prudent to just ‘check in’ as to the lawful basis of the ‘transparency order’ being routinely issued in the Court of Protection (CoP), without application and without therefore specific notice being given to the media. Logically, this sort of set up is either potentially lawful across arenas (and available for deployment in some shape or form in the FRC) or it is unlawful in all (and then its big uh-ohs).

The background to the CoP Transparency Order is that it was devised for the purposes of a pilot launched in early 2016. It followed a round table discussion about how to improve transparency in the Court of Protection, which at the time sat in private without a right of access to the media. The Transparency Order was the vehicle which enabled the CoP to move its operations (largely) into open court. The consequence of it has been to vastly increase the openness of that jurisdiction, and to have actually supported and significantly furthered the open justice principle. Without it CoP would still be sitting in private. I dare say without it CoP would need to seriously consider retreating behind the curtain of ‘secrecy’ for which it was previously (and still is occasionally) criticised. That would be a great shame.

I am not aware of the media ever arguing that the scheme itself was unlawful or that they ought to have been served with a formal application, but they can be seen regularly challenging the terms of the order in cases where they have a particular interest or think that the order is inappropriately hampering their ability to report. I imagine that on a practical level the media far prefer the existing set up to that which preceded it. It is, regardless of its lawfulness, considerably more open, and in practice facilitates more freedom of expression than was possible before. One sees from time to time, the Court of Protection adjourning to facilitate submissions from the media, but there is no suggestion that in each and every case a formal application must be made and served before P can be afforded anonymity. Such a position would be absurd.

But…to be lawful the CoP scheme does have to be consistent with s12(2) HRA 1998, which provides for the media to be given notice before an injunction restricting Art 10 ECHR can be made, with very limited exceptions. What isn’t apparent from anything I can now find online, either in the round table materials or the announcements of the pilot back in 2015/16, or on the face of the original or current PD itself, is any explicit reference to s12(2) HRA (the requirement to give notice to the media before restricting Art 10 rights) or how it is said the provisions of the PD are compatible with it. And nor is there any reference to in the rules or PD, which use discretionary flavoured language.

I had always vaguely taken the publication of the PD to act as a sort of constructive general notice to the media that this is what will be happening in each CoP case on the published court list, but until recently I had never particularly considered the CoP framework in terms of s12(2). Nor can I think of a judgment where I’ve seen art 12(2) specifically tackled.

If I want to argue this sort of framework could be transposed into another jurisdiction to remedy a problem of lawfulness, I need to be able to articulate how it is lawful in CoP. I’m going to try and do that here, but a little part of me is very conscious of the tendency of the Family Court to sometimes ‘forget’ s12 protection when making injunctive orders (see for example this twitter thread by Greg Callus). Part of me suspects that I may not be the only one to have overlooked or mentally fudged this.

To make this argument I’m going to draw a parallel here with yet another jurisdiction : infant settlement hearings in civil proceedings [see CPR 39].

In JX MX v Dartford & Gravesham NHS Trust [2015] EWCA (Civ) 96 the Court of Appeal gave general guidance for how to deal with anonymity for children and protected parties in personal injury claims. Whilst the decision is directly applicable only to those classes of litigant (whereas adult parties in FR proceedings are generally capacitous), there are some aspects of the guidance given which it is possible to carry across. IF the class of adult litigants in FR proceedings (given the nature of disclosed material in their proceedings and the general levels of public interest applicable to such cases) are meritorious candidates for anonymity, this case offers further support for a general rule as a proxy for actual notice being both appropriate and pragmatic solution to the problem.

In that case the court’s stated that any order for anonymity had to be made on the basis of necessity, but that ‘there are occasions on which the principle of open justice must give way to the need to do justice in the instant case…Any exclusion of such proceedings from [the open justice] principle therefore must be found in an overriding need to ensure that justice in the broader sense is done in the individual case.’

The guidance to first instance judges in this sort of case was therefore that where a matter was publicly listed and the media able to attend, it was not necessary for a formal application for anonymity to be made. Instead, the judge should invite submissions from the parties and any media present before making an order, and ‘unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family’.

This judgment is clear in its terms, but again, it does not reference s12 HRA at all.

Subsequently in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) a vulnerable but capacitous adult claimant was refused her application for anonymity, the court distinguishing Gravesend. Gravesend clearly isn’t authority for the proposition that adults in FR cases are entitled to anonymity. But it does demonstrate the sort of process that the Court of Appeal has accepted as proportionate, workable and legitimate where an identified class of person or case is very likely to have a justifiable case for anonymity.

In V v Associated Newspapers Ltd & Ors [2016] EWCOP 21 the then Vice President of the Court of Protection, Mr Justice Charles, dealt with a case where there was a dispute about the continuation of reporting restrictions in the Court of Protection (not long after the pilot had come into force – you may remember this as the ‘woman who had lost her sparkle’ case).

The judgment contains an interesting discussion of the (somewhat different) structure of the rules in that jurisdiction, and of the important distinction between turning the tap on and turning it off, which I am alive to but don’t have space to fully explore here. To summarise for the sake of balance though: by deciding to sit in public CoP is turning the tap on, and decisions on anonymity merely regulate the flow of the tap – in FRC arguably the tap is already on by virtue of the rules rendering hearings quasi-public, and thus any decision to make an anonymity order is a decision to turn the tap off. Here the analogy breaks down and the best I can do is to observe that whilst the tap is on at the wall it is only really in the High Court that anyone is operating the shower attachment on the other end!).

Charles J considered (amongst other cases) the Dartford & Gravesend case. In V, Charles J made clear that a default position for or against a public hearing and for or against anonymisation did not offend against Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 or amount to a presumption in favour of one article over another, but that rather, the court had to adopt a staged approach and to consider both issues in conjunction with one another (the one might facilitate the other).

Charles J said that the first stage was to consider whether there should be a public hearing. Given the FPR and the Mostyn analysis of the (inadvertent?) degradation of ‘privacy’ occasioned by the 2009 rule change, the equivalent first question for our purposes might be to consider whether the hearing should be quasi-public (FPR 27.10 ‘private’), fully public or private with a capital P (i.e. by excluding the media as permitted by FPR 27.11(3))).

‘But’ (said Charles J)

‘this first stage is not an isolated or preliminary stage […] This is because the weight of the main competing factors at this stage namely:

  1. the public interest in justice being administered in public, and
  2. the personal and private nature of the issues to be determined by the COP

will nearly always be affected by the existence and the likely effectiveness and impact of reporting restrictions.’

At paragraph 91 he said this :

‘…the default rule, and any practice direction that modifies it, represent a general conclusion on how best to administer justice. In reaching that conclusion a balance will have been struck between the relevant competing Convention rights and the factors, propositions and public interests that underlie them. But Re S makes it clear that this is not the end of the process and that as between Articles 8 and 10 (and so the factors and matters and public interests that underlie and promote them) neither takes precedence as such in a given case and so, in my view, it would be wrong to approach a default rule or practice as creating a presumption. Rather, it is part of the structure for a reasoning process that applies the Re S approach to a given case.’

Referring to the judgment of Lady Hale in Re C v the Secretary of State for Justice [2016] UKSC 2 he goes on to say (at 94) that:

‘In my view this recognition of the validity of a conclusion that generally in certain types of case (including proceedings in the COP) the administration of justice will be best promoted by either a private hearing or a public hearing with effective reporting restrictions, supports the view that on a staged approach to a particular case of that type the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type.’

The judgment clearly identifies alongside the importance of the open justice principle, the importance of the administration of justice as an aspect of Article 6 :

‘The Re S exercise has been called one of parallel reasoning and in the context of this and other similar cases it engages competing titans who start level and none of them hold a trump card. As was accepted by the media Respondents one of the factors (and so titans) in this case is the administration of justice.’

The concept of the implied undertaking, the extent and nature of which has been severely challenged by recent Mostyn analysis, is of course closely bound up with the need to secure the proper administration of justice.

The V judgment reiterates the distinction between an anonymity order and a reporting restriction per se, noting the usual ‘what’s in a name’ argument, but also quoting Lady Hale in Re C:

‘However, in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved.’

That of course, is broadly what I argued in my last article in respect of many FR cases. Gallagher is a reminder, though, that not all FR cases will fall into that category, and one does not need to read far into the substantive judgment in that case to fully appreciate the proper public interest in the identification of that particular couple (rich people spending exorbitant amounts of money litigating a simple case again).

Charles J concluded as follows :

‘I suggest that generally the COP should address the following questions:

i) Are there good reasons for the hearing to be in public?

ii) If there are should a public hearing be ordered with or without reporting restrictions?

iii) As part of (ii): How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?

iv) By reference to the conclusions on the above questions, on Lord Steyn’s ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order / anonymity order should be made?’

Note that Charles J didn’t shy away from saying that the “The answer to question (i) is almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing points 96 (ii) to (iv)”.

Similarly, Mostyn J himself said (in effect) in paragraph 43 of Gallagher, that the answer to the question of whether children should be named in FR judgments concerning their parents is almost always going to be ‘no’:

‘I strongly suspect that in most cases an order, if sought, would be justified which prevents the direct naming of any minor children, publication of photographs of them, or identification of their schools or where they live. The Re S balancing exercise would normally lead to that decision. It would prevent the children seeing their personal details in a newspaper or online. That would cause gratuitous upset and should normally be prohibited. I struggle to conceive of a financial remedy case where Article 10 would trump the other rights and allow these details to be published.’

Once one accepts that it is legitimate to identify certain categories of case or class of individual which are likely in most instances to demand a similar outcome on the question of anonymity – there is no proper principled argument against a similar approach in respect of other classes. The only question that remains is whether the particular class in question is generally deserving of that approach. In Very Much Ancillary I argued that in many if not most ‘ordinary’ cases there would be insufficient public interest to necessitate naming of adult litigants as opposed to anonymised publication of their judgments. Drawing on the ‘sparkle case’, the justification can also be articulated with strength from an administration of justice perspective (the potential chilling effect the spectre of identification might have upon compliance with duties of disclosure, the frankness of evidence, participation in proceedings generally and on the level playing field), although I acknowledge the force in the counter arguments that such issues apply equally to any adult participant in civil litigation. I acknowledge there are a range of views on this topic. For my part, the reporting of the facts is generally (but not always) going to be more critical than the names, and if in order to facilitate the reporting of anything it is necessary to lose the names, so be it (again, in most cases).

I need to return to the question of s12(2) though. Is my undeveloped notion of constructive notice good enough to save a process designed to deal with issues of anonymity without requiring unnecessary formality? How is my constructive notice idea articulated in terms of s12(2)? I think the answer is this:

As per Charles J, the rules do not tie the hands of the court, they provide a framework through which the court can and must exercise its function in each case pursuant to s6 HRA and in accordance with Re S – to balance the competing rights and make an individualised decision about the format of the hearing (public/private/hybrid), and about what may and may not be reported. The rules and PD are expressed in discretionary terms rather than mandatory terms (may, not must) but must be read in conjunction with the Art 6 duty which runs through everything the court does – and ‘where it appears to the court that there is good reason’ for doing something other than sitting in public or making an anonymity order the court is empowered to depart from the ‘ordinary’ scenario. As long as the court, pursuant to its s6 duty as expressed through the framework of the PD / rules, considers what the specific case demands there is no difficulty with Re S. The problem would be if the ‘ordinary’ became automatic, or if orders were issued without any judicial consideration. That doesn’t mean there is a need for some exorbitant hearing on the topic, or a long judgment – merely that the court actually applies its mind before confirming the ‘ordinary’ position is appropriate or that something else is required. The Re S exercise need not be time consuming or complex in most cases (though undoubtedly in some cases it is far from straightforward).

But what about notice to the media? It’s arguable, I think, that the general awareness of the framework on the part of the media (and dare I say it their tacit support of it) coupled with their notice of and right of access to hearings in order to make representations where they wish to do so, is sufficient. That is to say: this ‘constructive knowledge’ and an entirely workable route through which representations can be made is itself a ‘compelling reason’ to relieve the parties or the court of the need to notify the media in each and every case. The media should be (and in my experience are) notified of any proposed order in any case where they are already known to have an interest (and sometimes where something has gone wrong in CoP with the public notice of a hearing they are retrospectively notified so they can be heard). Anecdotally, my understanding is that there are already vast numbers of applications served on the media via the Injunction Application Alert Service which they have no interest in challenging, and I doubt very much that the media particularly want to be swamped by lots more applications, where the vast majority will not be cases they will have the resources or enthusiasm to attend.

A word of warning though. It’s all very well for me to say this is a good enough basis to be able to skip around s12(2), but it isn’t me who has to be persuaded. To comply with s12(2) the judge in the individual case needs to be so satisfied, because it is that individual judge making an order which potentially offends against s12(2). In most cases they might not need to agonise for long to reach that conclusion, but again, for the process to be compliant I think there does need to be an application of the judicial mind both to the signposts in the rule and PD AND to the constraints of s12(2).

In some cases, perhaps where anonymity seems to be strikingly inappropriate or where it is obvious the media would wish to object, the court might not be able to properly conclude that there is no need for case specific notice to begiven to the media – even if they haven’t attended so far. I don’t practice in the Court of Protection so it’s for others to comment, but my impression as an outsider who reads a lot of commentary about the CoP, is that the judicial mind is not always applied to the appropriateness of the transparency order until it is asked for by an observer who wishes to know the terms on which they may report (there are regular reports of difficulties getting access to the order). The impression is that the transparency order is often forgotten and only actually promulgated when it is requested by an observer. It should, per Charles J in V, be considered as part of the staged process of deciding that the hearing will proceed in public, and in most cases will be a facilitative condition of that public hearing. Others can comment better than I on this issue (if indeed it is one).

All that said, and whilst I think it would be a stinker to draft, I do think that it would be possible and helpful to have some form of ‘ordinary’ position contained in the FPR to deal with anonymity in FR proceedings. In light of the discussion above, I would have thought that any such rule should contain mandatory wording signposting the court to s12(2) and s6 HRA (omitted from my rough sketch previously).

It also occurs to me that one inadvertent consequence of Mostyn’s revelations about the unnoticed impact of the 2009 rules upon the meaning of ‘privacy’, is that as per V it may now be easier (at least in Mostyn’s court) to argue for the exclusion of the media – on the basis that it is the right of access for the media which causes and is the practical vehicle for the dissemination of private information in such cases. Passages in Gallagher seems to represent an attempt to tidy up the complicated boundaries now in terms of what a litigant discloses and to whom, but if Mostyn J is right that material deployed at a private hearing may be reported by the media, it remains unclear to me what stops a litigant from publishing that information (say on their own blog) following the hearing, regardless of the attendance of the media. It isn’t the media’s actual physical (or remote) attendance that makes a hearing quasi-public, it is the existence of the entitlement to attend (absent any order excluding them). I wonder tentatively whether one answer to this is that a judge may be able (in an appropriate case) to injunct an individual party from disseminating information in breach of the implied undertaking (which would not require notice to the media s12(2) to regulate the parties’ conduct.

The issues I’ve raised here for the first time and re-considered for a second are illustrative of the perhaps unforeseen ripple effect of Mostyn J’s contention that much of what we are doing has been unlawful. Whenever one starts to look for parallels and equivalences it demands analysis of the lawfulness and source of the judicial power in those parallel environments. Perhaps this is all pain for gain and will result in a healthier system in the long run, but it is certainly making my head hurt.

And in a related strand, I still haven’t got an answer to my query at the end of my last piece: if rule 27.11 renders an FR hearing not really in private, doesn’t this mean all our Children hearings are also not really in private, the effect of which would be to strip away (inadvertently) the privacy protection afforded by s12 Administration of Justice Act 1960?

 

Very much ancillary

A lot has been written of late about the privacy (or otherwise) of family money cases, and all of it by men with big brains and a lot of words. As someone who hasn’t conducted a money case for some years (not great with numbers, me), I would not dare to offer any view on the substantive issues that arise in money cases. However, on the ancillary (yet increasingly important) issue of privacy-transparency in financial remedies, I am (possibly unwisely) going to throw in my contribution, to see if I can distil where we’ve got to and how we might move forward.

Anticipating that all the children lawyers in the virtual room are about to get up and leave, let me flag that there are points of interest in this topic for children lawyers too – even though almost all the judicial opinion I’m going to consider here arises in the financial remedy context.

It seems wise to precis the story so far before launching into my own view…I have attempted to be brutal in condensing the gist of various waypoints, because I want this to be a document which is both useful for lawyers and accessible to a wider audience than law-geeks. Sadly, I find I’ve still written a tiresomely long post (not assisted by the fact that even as I sat down to write it there were more judgments coming from one Mostyn J). It’s hard to keep up, which is partly why I’ve let the chaps go first, watching from a distance with a large gin and a cold flannel.

 

The beforetimes

 

Once upon a time there was Mostyn 1. Mostyn 1 took the view that ‘private’ in the family procedure rules (27.11 FPR) meant just that. He didn’t think that published judgments should generally name the parties in money cases unless there was bad behaviour (brutal summary number 1).

By way of context, before 2009 the only people who could attend hearings of this sort as of right were the parties and their lawyers.

In 2009 the court rules (the Family Procedure Rules, or FPRs) were changed to allow the press access to hearings, albeit that hearings are still described in the same rules as ‘private’, just as they had been before.

One issue still being unpicked is the extent to which this rule change altered the confidentiality of material disclosed during such ‘private’ hearings. i.e. did private still mean private?

Also important context is that in Clibbery v Allan (No 2) [2002] EWCA Civ 45 the Court of Appeal had held that an ‘implied undertaking’ notionally given by parties to one another and the court, meant that material disclosed under compulsion (as it is in financial remedy cases) was prohibited from publication ‘before, during and after the proceedings are completed.’ The 2009 rule change didn’t alter the compulsory nature of the parties’ duty of full and frank disclosure: it affected who could observe a hearing, but did not extend to access to documents.

So, let me introduce you to Mostyn 1…

In Appleton v Gallagher [2015] EWHC 2689 (Fam), a case involving two high profile celebrities, Mostyn 1 decided that the 2009 rule change made no difference to the privacy arising from the implied undertaking.

Mostyn 1 said this:

 

“It would be the most startling example of the law of unintended consequences if the result of the rule change was that the press could report everything they heard in an ancillary relief hearing they were allowed to attend. It is not a dilution of the principle of open, public and fully reportable justice, the importance of which I naturally recognise, for me to explain that the rule change only granted the press the right, as watchdogs, to observe private business being dealt with by the court, but not to report specific details of the case.

 

Remember that startling example. We’ll come back to it.

Mostyn J also held that the implied undertaking bound not just the parties receiving the disclosure of their spouses, but also the media (following the lead of Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314).

Earlier that year Mostyn had given another judgment on the same topic in DL v SL [2015] EWHC 2621 (Fam), where he had said ‘there are some categories of court business, which are so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression’. In Appleton, Mostyn conceded he might have gone a bit far there, and of course the Re S balancing exercise would still need to be carried out (see Re S (A Child) [2004] UKHL 47, which sets out the exercise judges must carry out to decide issues that engage competing convention rights, under Article 8 private and family life and Article 10 freedom of expression). He might have given the impression, he said, that ‘the ace of trumps always wins the trick’. Remember that phrase too.

However, the concession was not a complete step back. Mostyn 1 still maintained that

 

‘the freedom of expression side of the scales starts with some heavy weights on it. In ancillary relief proceedings it seems to me that the situation is the other way round. The press have to justify why the core privacy maintained and endorsed by Parliament should be breached. Here the privacy side of the scales starts with heavy weights on it. But there are at least two situations where the balancing exercise will lead to a judgment being fully public.’

 

The two situations were (1) the ‘McCartney situation’, i.e. the need to correct false information already in the public domain), and (2) where there has been proof of iniquity (bad behaviour).

Here I need to step back in the timeline to tell you about Lykiardopulo (phonetic Lick-ee-ah-dop-oolo). In 2010 (Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 https://www.bailii.org/ew/cases/EWCA/Civ/2010/1315.html) the Court of Appeal had considered anonymisation and publication of judgments. There the 3 appeal court judges issued concurring judgments, best summed up for our purposes in this extract from the judgment of Sir Stanley Burton, who said :

 

‘Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.(para 76)

 

There were some cases where this ‘implied undertaking’ might not apply:

 

‘different considerations apply where the information and documents provided by a litigant are false. That litigant has no entitlement to confidentiality in respect of that information or those documents…In general, there is no good reason why his conduct should not be public. In such a case, the court may order publication of a judgment without anonymisation, not as a sanction or punishment, but because there is no right to confidentiality in relation to that conduct. (para 80)

 

In Lykiardopulo the court took the view that where there was material that was genuinely commercially sensitive it could simply be redacted.

Back in the room…or at least to 2015 and the Appleton case. Mostyn 1’s Appleton judgment contains these prescient words :

 

I recognise that I may be wrong about the collateral effect of the implied undertaking on third party journalists in the new era. It may be that in this regard Clibbery v Allan is now a dead letter and that Lykiardopulo was wrongly decided. In Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam), a case decided [pre-rule change], Munby J […] held that a case where journalists were permitted to enter court and observe the proceedings under an ad hoc arrangement was not one held “in private” for the purposes of section 12 of the 1960 Act. That view cannot, so it seems to me, survive the opening words of FPR 27.11, which expressly state that the right granted to journalists is to attend a hearing held in private. A hearing cannot be in private and not in private at the same time.

But, as I say, I may be wrong. If I am then I agree with Mr Dean that the court has to conduct a pure, fact-specific Re S balancing exercise. In such a situation the implied undertaking will still be fully operative as between the parties. That is a factor to be placed on the privacy side of the scales…’

 

Having said there were two scenarios in which anonymisation would not be appropriate, in fact Lykiardopulo goes on to identify a third, which is the basis upon which Nicole Appleton and Liam Gallagher were named:

 

‘If the parties are well-known it seems to me that the press must be able to identify them and the fact that they are engaged in ancillary relief proceedings. The name of the case will be publicly published in the cause list and the parties will be seen by the public arriving and leaving court. The fact of the divorce and of the impending ancillary relief may well have been the subject of press reports. That has happened in this case. Thus, it would be absurd to ban publication by the press of those facts. On the other hand, if the parties are not well known an order for anonymisation should readily be granted.

 

Only ‘financial information,’ rather than identities would be restricted in line with the implied undertaking.

Meanwhile, further down the judicial corridor, Holman J took a different view. He had developed a practice of sitting in public in financial remedy cases, on the basis that rule 27.10, which incorporates a power for the court to direct that it sits in public, did not create a presumption that the court would sit in private (see Luckwell v Limata [2014] EWHC 502 (Fam)). Holman emphasised ‘the importance of court proceedings being, so far as possible, open and transparent’, saying that

 

‘Courts sit with the authority of the Sovereign, but on behalf of the people, and the people must be allowed, so far as possible, to see their courts at work. There is considerable current, legitimate public interest in the way the family courts daily operate, and that cannot be shut out simply on an argument that the affairs of the parties are private or personal. Precisely because I am a public court and not a private arbitrator, I must be exposed to public scrutiny and gaze’.

 

Mostyn J rightly noted that this divergence of views between High Court Judges was unhelpful, and he expressed a wish that the Court of Appeal would resolve it. However, one assumes the right appeal never arose because Mostyn 1 v Holman never was resolved.

Meanwhile, in W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), Mostyn declined to afford litigants to a ToLATA dispute (heard in the civil court, under the distinct Civil Procedure Rules that Parliament had intentionally applied to such cases) any derogation from the open justice principle (the parties were anonymised only pending appeal, which was ultimately compromised privately). There Mostyn J noted that:

 

‘The failure to implement Part 2 of the 2010 [Children Schools & Families] Act does not mean that, absent a reporting restriction order, the media are definitely free to report everything that they observe and hear in court. Their freedom to do so depends on whether or not the 1926 Act applies and on whether the implied undertaking remains operative. As I have explained, these are turbid waters’.

 

The here and now

 

Fast forward to 2021. Enter Mostyn 2.

Firstly, there was a consultation, issued in the wake of the President’s Transparency Review. Mostyn, in his ‘head of Financial Remedies Court’ role, proposed a reporting permission order, and for journalists and legal bloggers to have access to a wide range of court documents (including primary disclosure) on request. He sought views. The grapevine suggests responses were mixed. Anecdotal evidence from social media indicates that private client lawyers were horrified (putting it politely) on behalf of their (often, but not exclusively, wealthy) clients. I contributed to a response by The Transparency Project to this consultation raising some issues about the proposals for journalists to have access to very private information like bank statements, questioning whether this was likely to be either wanted, needed or justified in most cases. We also raised concern about the need for more focused consideration to the potential interference with the Article 8 rights of children of the parties who were to be afforded notional anonymity but who might well be identifiable by jigsaw.

Even before the consultation had closed the judgments from Mostyn 2 started to emerge, and they have been coming thick and fast since then.

 

The first batch

 

First there was BT v CU [2022] 1 WLR 1349[2021] EWFC 87 in which Mostyn 2 said that ‘it should be clearly understood that my default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations’.

Next came A v M [2021] EWFC 89 where Mostyn 2 reiterates BT v CU, making clear that he has not ‘snatched away an established right to anonymity’ – in fact it didn’t ever exist.

The third judgment was Aylward-Davies v Chesterman [2022] EWFC 4. Here Mostyn 2 dealt with a declaration of parentage, but where no under 18s were involved – the ‘child’ was an adult (which is why I think I and others missed it initially). Although the FPR provided for the hearing to be in ‘private’ Mostyn relied upon H v News Group Newspapers Ltd [2011] 1 WLR 1646, where the Master of the Rolls (in civil proceedings held in public) said that

(1) The general rule is that the names of the parties should be included in judgments.

(2) There is no general exception for cases where private matters are in issue.

(3) Anonymisation is an interference with article 10 rights of the public at large

(4) The court should only make such an order after close scrutiny

and named the parties in his judgment.

 

The biggie – Xanthopoulos

 

Finally (well, penultimately as it turns out) came Xanthopoulos v Rakshina [2022] EWFC 30 (phonetic Zanth-op-oo-loss). I’m going to borrow here from a post I wrote about this case on The Transparency project Blog when it came out:

 

‘Mostyn J says that since the judgment in A v M, he has managed to ‘[examine] the arrangements for dispatching business from the dawn of judicial divorce on 1 January 1858’. We aren’t going to take you through that in full. The gist of it is that, although courts have often dealt with financial remedy cases (previously known as ‘ancillary relief’) in ‘chambers’ or in private, in the sense that the hearing took place in a small room and the general public were not allowed in, this did not in fact equate to any restriction on what could then be reported about the hearing afterwards, because while sitting in private the judge was treated ‘as if sitting in open court’, meaning that the principles of open justice applied.’

 

Mostyn 2 draws a distinction between a practice of hearing cases in a private room and categories of case which had a truly secret character and which the law recognises as such (as illustrated in the Administration of Justice Act 1960 which applies to children but not money cases). It is only in the latter he says (drawing on Scott v Scott [1913]) where there are automatic prohibitions on the publication of what goes on in such hearings.

Quoting myself again: ‘on the Mostyn analysis, there is a clear distinction between cases heard in private where the facts are not secret, and cases heard in private but which fall under s12 [e.g. children cases] where the facts are protected’.

Mostyn describes the rule change that allowed journalists into ‘private’ hearings in 2009 as ‘curious hybrid arrangements, whereby the proceedings simultaneously are, and are not, held in public’. He says this has ‘the effect of completely overturning the reasoning of the Court of Appeal [in Clibbery, about the implied undertaking].

So, it isn’t just the lengthy history trailing back to 1858 that matters here. The 2009 changes, in Mostyn 2’s view, ‘extinguished’ the privacy of the proceedings, in and of themselves. Albeit that nobody noticed until now. The true consequence of the journalists being permitted to be present, says Mostyn 2, is that ‘the proceedings are to be treated as if in open court’.

Remember I said we’d come back to something? Isn’t this a ‘most startling example of the law of unintended consequences’? Not only unintended but also entirely unnoticed for 13 years. A hearing can, it appears, be ‘private and yet not private at the same time’ after all.

Civil proceedings, also held in open court and also often involving compulsory disclosure are, as per Mostyn 2, directly analogous with financial remedy proceedings. In such cases anonymity is far from the norm and require specific justification under the Civil Procedure rules that apply (as per W v M, this renders ToLATA proceedings are anomalous when compared to other family-separation driven litigation, but such proceedings are heard in open court proper, not merely ‘as if in open court’).

Children proceedings also involve compulsory disclosure, and operate under rule 27.10 and 27.11. Mostyn now says that, as a matter of principle, what applies in civil proceedings should apply in financial remedy proceedings, even though that is not what has always been happening (Mostyn gives an example of a 2021 case of his in which he fell into the error he has just identified : Villiers v Villiers [2021] EWFC 23 where he stated that certain paragraphs of that judgment would be redacted from the published version because “they contain personal financial details of both of the parties, extracted from them under compulsion”).

Whilst the suggestion that civil and FR proceedings are analogous is superficially attractive, there is usually an essential difference between the relationships between the parties in a contractual or personal injury dispute and those in the Financial Remedies Court. It’s worth remembering that in most financial remedy cases both parties will have been compelled to share very private information. Even in the most mundane of cases disclosure includes a year’s bank statements, which will describe the income, spending habits, lifestyle and geographical movements of an individual. Such documents may contain information about intimate matters such as medication or sexual matters and may provide sufficient information to facilitate doorstepping, stalking or harassment. Any of these types of information might in theory be the subject of a duty of disclosure in civil proceedings (if potentially relevant), but in most civil cases the duty of disclosure will not always bite across such a wide range of private domains, and information required to be disclosed will not be of such a personally private nature – or at least if it is it will not always be so wide ranging and granular. Even ToLATA proceedings will not always involve quite the breadth of disclosure that is automatically required in FR proceedings. The FRC consultation proposed the default sharing of documents and disclosure with reporters, and Xanthopolous seems to suggest that at least insofar as the contents of such documents are referred to in hearings, they are presumptively reportable notwithstanding the implied undertaking. Whilst in some FR cases the contents of bank statements will be materially relevant to matters that the press legitimately wish to report on, in most cases this will not be so, and sharing of this information outside the hearing or by disclosure of such documents to reporters will be neither a necessary nor a proportionate interference with their Article 8 rights, and may cut across the duties of confidentiality owed by one party to another or to the court.

The children lawyer in me cannot help but pause to note here that children proceedings also involve compulsory disclosure, and also fall under the auspices of FPR 27.11. The only distinction between civil and financial remedy proceedings here is section 12 of the Administration of Justice Act 1960, which only applies where the court is sitting in ‘private’ (whatever that means). I’ll come back to that too – stay with me children lawyers!

Moreover, remember when equating civil proceedings with financial remedy following divorce that litigants in the FRC are not to be assumed to be volunteers in the process, often they are there of necessity – either because they are a respondent (in circumstances where no civil wrong in the nature of tort or breach is claimed against them), because one or other party seeks a remedy that can only be provided via court process (e.g. pension sharing) or because they are unable to access costly ‘alternatives’ such as arbitration.

The upshot of Xanthopolous is that (if Mostyn 2 is right, or even if he isn’t, for the time being it’s what will be happening in cases heard by him!) parties will be named in published judgments unless they can persuade the court there is a good reason for them not to be named. They cannot assume anonymity as of right and they must make a specific application in order to claim it. Furthermore, anybody (party, journalist, blogger) is entitled to publish money judgment even if the judge has not done so – because whilst the hearing is private, the information in the case is not under a veil of secrecy. This has potentially profound implications for reporters and those who would wish to tell their own story.

What is left of the implied undertaking if the deployment of compulsorily disclosed information in a private hearing means it is presumptively reportable? Turbid waters indeed.

More important than complaints made by some that the judgment breached the principle of stare decisis (Latin – a principle that disputes in litigation should be decided according to established precedent, i.e. that earlier cases should bind later judges, save in particular circumstances) is whether his decision was per incuriam (sorry, more Latin – it means a decision made through lack of due regard to the law or the facts) – it does seem to directly contradict Clibbery and Lykiardopulo (on the scope and effect of the implied undertaking) and other judgments of the Court of Appeal which are definitely binding. Although it is not explicit, the necessary implication of Xanthopolous is that the established view of the implied undertakings and these judgments specifically are wrong. Munby says that the comments I’ve quoted were obiter (Latin for ‘in passing’, as the main issue to be decided was anonymity not the implied undertaking), and that the ratio (Latin – main principle) was consistent with the Re S balancing exercise which was carried out in that case. Perhaps that is so. But the remarks of the judges in the course of their judgments in Lykiardopulo make very clear that in general they did not consider identification was going to be warranted in the vast majority of cases – whereas Mostyn 2 has reached the opposite conclusion.

In an anticipatory move, Mostyn makes the point that the Family Procedure Rule Committee (of which he also happens to be a member) has the power to make rules that are in line with the law, but they don’t have the power to change the law – and in particular they can’t make rules that give judges powers that they don’t already have. Here he is heading off any notion that the Rule Committee can solve the problem he has presented them with by simply enacting a rule providing that the publication of a judgment or reporting of FR proceedings will be a contempt of court. Since the ‘rubric’ (a warning at the top of most orders telling readers that they must not identify the parties) has been exposed as ineffective, this can only be achieved through legislation applicable generally to such actions, or through a fact specific order following a Re S balancing exercise. Or so it goes.

 

The last one so far – XZ v YZ

 

Finally, finally (for now) In XZ v YZ [2022] EWFC 49 https://www.bailii.org/ew/cases/EWFC/HCJ/2022/49.html lawyers on behalf of a husband wisely applied for a reporting restriction order before the final hearing of a money case. Mostyn J made an interim reporting restriction order, saying that he was unable to carry out the Re S balancing exercise until the end of the trial when the evidence had unfolded and the press were able to make informed representations. Implicitly, he considered that the interference with Article 10 represented by a deferral of a final decision was proportionate, without prejudice to the final outcome. He suggested that this approach might be more widely adopted in order to ‘avoid a wastage of time at the beginning of the case and [to] ensure that the balancing exercise is done on the best available evidence’.

 

Responses to Mostyn 2

 

Since the chunkiest of the Mostyn 2 oeuvre, Xanthopolous, has been published great minds have expounded their views on its correctness or not. Firstly, Sir James Munby, former President of the Family Division set out at length why Mostyn 2 was right, and why he too, just like Mostyn 1, had been in error in some respects in the past (see Some sunlight seeps in). He threw down a gauntlet asking for views on why he and Mostyn were wrong. The gauntlet was swiftly picked up by barrister, Christopher Wagstaffe, writing in the Financial Remedies Journal. ICLR have also published two of a promised three linked blog posts from David Burrows on the topic (Open justice and family proceedings: Part 1, anonymity, and Part 2 Stare Decisis).

The Munby piece is in line with Mostyn so I won’t try to summarise it, but I will draw out a couple of points that are supplemental.

Firstly, whilst some, including David Burrows (above), take the view that Xanthopolous breached the principle of stare decisis, Sir James Munby in his Sunlight post thought otherwise:

 

It has been suggested […] that Mostyn J violated the rule of stare decisis in changing his mind. This is not so. He was not bound by his previous view. High Court judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so […]. Mostyn J clearly articulates powerful reasons for not adhering to his previous view, of which the foremost is that he now acknowledges it as fundamentally erroneous.’

 

To parse what Munby is saying – what else is a judge who has realised he is wrong to do but correct himself? Therefore, criticism on grounds of stare decisis is misplaced and – I would suggest – not the biggest issue.

Munby also denounces what he calls the ‘desert island heresy’, emphasising that the Family Court / Division is not some special jurisdiction where the normal rules don’t apply.

He sets out an interesting analysis of the shift in practice whereby at some point in the 80s or 90s there was a significant uptick in the rate of anonymisation of published judgments, but that pre-80s most had been published in un-anonymised form.

I’m bound to say that each of these judgments and essays is fiercely interesting, and when considered in isolation and as the reader is taken through their internal logic, a compelling and utterly convincing piece of writing. I have watched, palm tree like, as each step has unfolded. But ultimately, I’ve tried to digest and synthesise them all and to form my own view.

The difficulty, as highlighted by Christopher Wagstaffe is that in highlighting the erroneous approach that has accrued over time, Mostyn 2 just reverses the difficulty – replacing a strong presumption against identification / reporting with a strong presumption against its prohibition – and requiring the parties to do all the running in order to keep private private. Instead of the ace of trumps always winning the trick, now the ace of spades always wins the trick. In fact, Re S is crystal clear that, when the issue arises, there must be no presumptive starting point. The analysis begins from a place of parity as between Article 8 and Article 10 – the scales may tip one way or another depending upon the particular features of the individual case.

 

What are the ramifications of all this? And what’s in a name?

 

Fortunately, I’m not the umpire of this great debate – I can only make a small contribution to it, hopefully a productive one.

Notwithstanding the tensions between the different positions I think it is possible, even if one begins from a position of neutrality, to see (or at least to argue) that the balance is likely in some respects to tip in a particular direction in most or at least many cases. For example, whilst there will be a few cases where there is a genuine public interest in identifying the parties to FR proceedings (for example the three Mostyn 1 Appleton type scenarios), in the vast majority of cases such factors will not apply and there is realistically going to be limited public interest upon which to justify the naming of the parties. In contrast, in circumstances of compelled disclosure, proceedings explicitly described as ‘private’ (albeit permitting the attendance of limited categories of reporters), and given the wide and deep personal private and financial information that is rendered available, there must be a legitimate expectation of privacy which engages Article 8.

I am someone with a reputation as a transparency advocate, and am a strong supporter of the public interest in the publication of judgments generally, and of the publication of ‘ordinary’ cases as opposed to merely atypical, newsworthy or legally interesting judgments – including money cases (See for example this recent blog post by Iain Large on The Transparency Project). Such categories of cases hold general public interest – the public should be able to see how the family court ‘does’ justice and how it ‘does’ money cases. That said, I would suggest that in most cases it will not add anything of public interest to name the parties in such a judgment, and therefore it won’t be a necessary and proportionate interference with their Article 8 rights to do so. In other cases it might be necessary and proportionate to name the parties in order to ensure that Article 10 rights are adequately respected, particularly in the minority of cases where there is press interest or where it might be reasonably be anticipated there will be press interest on publication (realistically the media often don’t pick up on cases until they appear on Bailii, now the National Archives). There will be an interplay or a trade off in some cases between anonymisation and the inclusion of factual detail in judgments / reports – in some cases reporting of the factual detail may be facilitated by decoupling it from the identity of the parties (rendering the interference with Article 8 occasioned by reporting the facts proportionate in light of the quid pro quo of anonymity). In many cases something more than mere removal of names will be required to achieve effective anonymity (I can think of at least one recent ‘sleb’ case where the unnamed parties were readily identifiable from the facts contained in the judgment). In yet other cases the identification of the parties might render it necessary to consider whether the inclusion of all the granular detail of the case is necessary and proportionate. In a minority of cases a warts and all approach may be entirely justified – names and gory details are all fair game (i.e. the Appleton scenarios).

Respectfully, I think that the weakness in Mostyn’s new ‘general rule’ to name the parties, as set out in BT v CU, is that he fails to drill down and disaggregate the public interest in publication per se from publication of names. This intense focus on specifics is precisely what the Re S balancing exercise requires. I’m familiar with the refrain in Re Guardian News & Media Ltd [2010] 2 AC 697 that names matter :

 

“What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature.

 

They do matter…when the press want to tell a story. But if truth be told they don’t and will never want to tell the story of the majority of ‘ordinary’ FR cases. The press can and do ask retrospectively for anonymisation to be lifted once they become aware of a case – and if they consider it holds some interest to them that can’t be met without names, as in Tickle v Griffiths [2021] EWCA Civ 1882. There the statutory and factual context was different (the case concerned identification of parents in a children case), but the evaluative exercise was identical. In most children cases any public interest is met by publication of the facts on an anonymised basis. In Tickle, the particular public interest in the individual case simply couldn’t be met without naming the parents in the judgment and so, whilst in the vast majority of children cases such naming would not be permitted, here it was necessary to break away from the usual anonymity in order to balance the interference with the various competing rights in ways that were proportionate.

In most money cases names add nothing to the equation. Their publication in conjunction with the facts of the case is clearly an interference with Art 8, though it might be argued that the impact upon them (absent any media attention, which may not be forthcoming in a run of the mill case) would be limited.

Against that backdrop then, consider the practical ramifications of the Mostyn 2 thesis. In the beforetimes, the burden in practice was (generally) upon the media to justify their wish to report or to identify parties. Formal applications were rare, because the media are necessarily parsimonious about resources in connection with court reporting, and because discretion is the better part of valour – skilled court reporters often work with the court and parties to find sensible solutions (a pragmatic journalistic Re S exercise), prioritising facts which are genuinely justifiable to report, and taking only the contentious points that they need to take in cases where it is worth the effort.

Now the burden is upon a private individual, who may not have chosen to become involved in proceedings, who has been compelled to disclose their private information, to bring an application to the court in order to retain their privacy (even though the hearing at which the issues will be ventilated is described as private). This burden falls upon the celebrity or wealthy litigant and upon the financially weak or coerced, the unrepresented, and the frightened – and it will fall on those who recognise that the named publication of their judgment might well have adverse impacts on their children. This burden will fall on the vast majority of litigants, creating a huge potential burden on the system as the court disposes of such applications. In XY, the husband felt the need to seek an order just in case, whilst the wife was reportedly neutral (i.e. not fussed) and the press were not even alive to the case. One can understand why. Mostyn J publishes judgments at a rate of knots.

Xanthopolous and BT v CU appear to indicate that the general expectation of privacy that I have described above is unlikely to be enough to justify anonymity (the ace will always win the trick). But, as Wagstaffe points out, Mostyn is clear that he and other judges must properly apply Re S with all its intense focus on the individual facts. What we notably don’t know is what (if any) arguments were deployed in the Mostyn 2 cases, in order to support the anonymity requests made – none are set out in the judgments. We therefore must wait to see whether in future cases the sorts of arguments made above will hold weight when applied to individual cases.

The ‘generalised’ points made above are not invalid simply by virtue of their wide application to many cases. Whether such generic points are enough to justify anonymity in any specific case will depend upon the opposing weight to be ascribed to the public interest in reporting such cases (generally and specifically). I would argue that in most cases the public interest lies in the publication of a judgment which articulates clearly the facts, the process, the reasoning and the decision of the court, not in the specific identity of the parties, and which can contribute to the increasing visibility of patterns of litigation behaviour and outcomes. Far better to keep all the detail of the individual case without names than to name parties and (as will be inevitably be necessary in some cases to prevent the identification or impact on children) than to lose so much of the detail that the judgment itself is left as a mere sketch, stripped of its factual detail and its utility – a name without any substance.

Litigants worried about their privacy may find little comfort in the Campbell v MGN Limited [2004] UKHL 22 line of authorities relating to the misuse of private information – although the media can still be the subject to a retrospective claim for damages where there is a legitimate expectation of privacy and where publication is not adequately justified on public interest grounds, the damage by then has already been done. A litigant who is worried that the media – or the other party – may seek to publish their ‘private’ information as referred to in a (not really) private hearing must now apply to the court to make sure that doesn’t happen, and many will have neither the resource nor the energy either to take protective action or to bring a retrospective claim. For parties engaged in litigation post-separation, this is an unwelcome additional burden (financially and emotionally) and there is obvious potential for exploitation of this ‘litigation risk’ so as to distort outcomes or pressurise or dissuade litigants. Whilst FRC judges are often keen to extol the virtues of arbitration as a more private alternative, it does need to be remembered that decisions of this sort have potential ramifications across the board, including upon those who cannot afford arbitration and those whose opposing party is not willing to arbitrate.

A further anomaly in the judgment is the treatment of children. Neither s97 Children Act 1989 nor S12 Administration of Justice Act 1960 applies in this scenario to offer them protection. Mostyn has concluded that there is no power to grant generalised automatic anonymity to the parties absent a specific application, followed by a Re S exercise and a specific order. What difference in principle is there between children, who are now apparently to still be afforded automatic anonymity, and adults who are not? In reality, this is unlikely ever to be contentious, as neither parent is likely to wish their child to be identified, but this anomaly exposes and confirms the fallacy in the Mostyn 2 position. The distinction can only be based on a view that there is generally likely to be a greater justification for privacy and a reduced public interest in permitting identification for this class of person than for an adult who is directly engaged in proceedings. These are variations on a theme – the sort of presumptive approach that Mostyn himself acknowledges is not appropriate.

In Xanthopolous Mostyn pushes back at one legal commentator who had queried the justification for his identification of children in a judgment, saying

 

‘With respect, that is the wrong question. The correct question is not:

“Why is it in the public interest that the parties should be named?”

but rather:

“Why is it in the public interest that the parties should be anonymous?”

If the correct question is asked then the burden of proof rightly falls on the party seeking to prevent names being published rather than on the party or journalist/blogger seeking to publish them.’

 

But isn’t this just a simple switching of the aces?

Although it is not as pithy, I want to suggest a better question is this :

Does the court’s obligation under s 6 Human Rights Act 1998 not to act in a way which is incompatible with a Convention right, require the court to identify the parties in this case or to protect their identity? (and – What other steps are required to ensure an outcome which balances proper respect for each convention right engaged in this case)?

 

How do we get out of this pickle?

 

Of course, my redrafting of the question doesn’t solve the problem of what actually IS ALLOWED in the absence of anybody raising the issue, or in the absence of a specific order. Can the parties or media report what has been said in a private (but not secret) hearing? Can they name themselves (and by extension their ex) as the parties in the case?

In fact, we do need to re-establish some form of default position, whatever that may be, so that everyone knows where they are. A default position that will inevitably run against the tide of the majority of cases and prompt a high number of contested applications is not good resource management, and will dampen the ability of the system to do justice.

We could wait for Parliament. But that is probably jam tomorrow.

We could wait for a suitable case or appeal to come up where definitive guidance can be given. The FRC judges are clearly keen for this to happen, because they recently issued a guidance note indicating that any case in which an anonymity application arises should be alerted to the FRC lead judges in order for the powers that be to consider transfer up. But waiting for the right case to come a long is an uncertain game :

  • District Judges almost never publish their judgments in FR cases, and CJs who publish a bit more, don’t do much money work. The promise that judges will publish 10% of their judgments is not going to become a reality any time soon (not least because DJs in particular are overworked and demoralised). The numbers of cases where the issue of anonymisation in a judgment which it is proposed should be published is going to be very slim.
  • A litigant who wants to pass unnoticed by the media is unlikely to raise the issue unless its clear their judgment is going to be published, and are unlikely to volunteer their case to be a test case in the High Court or Court of Appeal,

In any event, the absence of an appeal any judgment is unlikely to completely calm the somewhat stormy waters as it will only be persuasive authority at best (though if delivered after full argument it may well be more persuasive than Xanthopolous, which was not).

There is a third way, I think. If the Rule Committee consider this pickle a priority.

Court of Protection (CoP) proceedings are now presumptively in open court. From a Mostyn 2 perspective, where private can mean ‘as if in open court’, this could be said to be at least partly analogous to the post-2009 position in financial remedy proceedings (albeit that in the Family Court not every Tom, Dick and Harriet can waltz in as of right). The CoP manages with a standard ‘transparency order’ which provides for anonymity of P (the person lacking capacity and who is the subject of the court decision). This is not dissimilar to the ‘reporting permission order’ proposed in the FRC consultation, albeit that the draft RPO was considerably more caveated and complicated to interpret. In the Court of Protection the transparency order generally only prohibits the identification of P by name, and is imposed in standard form, subject to any request by the parties or the press to adjust it. Where such a request is made the court considers the appropriate balance on the specific facts of the case. The Transparency Implementation Group has been tasked with considering something similar for the purposes of a pilot scheme (See para 39 Transparency Review Report).

The Holman approach of sitting in open court never caught on, and it is clear that there needs to be a framework offering more consistency than the preference or practice of individual judges, so a simple transposition of the CoP model isn’t what is required. Nor is the CoP directly comparable to FRC. The key difference between CoP and the FRC is that P is always a vulnerable person whose most private matters including often medical and personal care matters are being discussed, meaning that in most cases there is no contention about P’s anonymity and no need for a laborious full scale Re S balancing exercise. In the FRC the parties are not necessarily especially vulnerable, but the materials disclosed and discussed will still be of a private nature. What the CoP example illustrates neatly though, is that it is possible to set a default framework based upon a generalised balancing of that is likely to be about right in the majority of cases of a particular type, whilst also retaining the discretion to adjust where necessary in individual cases to properly meet the needs of the case and afford due respect to the convention rights. The CoP example also illustrates that, where the scales are set about right, there is limited impact on court process and that applications to adjust are few in number (one only has to read the excellent Open Justice Court of Protection blog to see that is the case).

 

Some ideas

 

So (finally), here are my suggestions. Mostyn suggests that the Rule Committee don’t have the power to sort this out. They have to stay within their vires of course, and they can’t create new law. However, the Rule Committee is a statutory body who must exercise their functions under the Courts Act 2003

 

‘with a view to securing that a) the family justice system is accessible, fair and efficient, and b) the rules are both simple and simply expressed’ (s73).

 

It would be squarely within the remit of the Committee to frame the Mostyn 2 conundrum with rules that make questions of anonymity workable so as to further the overriding objective of doing justice between the parties, putting them on equal footing, apportioning court resources fairly and proportionately etc. if consistent with the current law (whether through the common law or statute).

Part of the Rule Committee’s role is surely to facilitate the judiciary’s compliance with their duty pursuant to s6 HRA 1998 not ‘to act in a way which is incompatible with a Convention right’. The overriding objective was presumably designed to facilitate the judiciary’s compliance with their obligation to act compatibly with Article 6 rights not just of individual litigants in the individual case, but across the board.

There is nothing (apart from a very workload) preventing the Rule Committee from framing rules which provide for a framework which applies in cases of a particular type, but which is subject to suitable provisos permitting an alternative where the court, either of its own motion or on considering an application from a party or interested person, considers that this is required in order comply with the s6 statutory judicial duty. The FPR are full of such rules. Take rule 27.10, which permits the attendance of journalists and bloggers, but sets out a framework for their exclusion.

By way of illustration only, the rules might provide that, where a judgment is to be published, the names of the parties and the names of the parties children will not be included in the judgment – unless the court is of the view, having considered the applicable convention rights and any representations from the parties or other interested person or body, that it is appropriate for them to be named in furtherance of convention rights (and in compliance with the s6 HRA 1998 obligations of the court as public body).

The rules might also provide for the court to make such ‘interim’ order as is necessary to protect the Article 8 rights of any party or interested person pending final hearing, having considered the applicable ECHR rights and any representations from the parties or other interested person or body (but there are difficulties with making orders ex parte vis a vis the press as happened in XZ v YZ, see Bristol CC v C & Ors [2012] EWHC 3748 (Fam), which describes as ‘axiomatic’ the proposition that ‘save in exceptional circumstances, any application for a reporting restriction order [RRO] should be made on notice to the media’ via Copydirect (now the PA Injunction Applications Alerts Service)).

The making of a RRO amounts to no more than a mechanism through which the court’s existing power – and duty – to grant injunctive relief in order to comply with its own s6 HRA duty and in order to protect the parties own Article 8 (or other) rights. It is not a creation of a new power. It is not ultra vires for the Rule Committee to describe a way for the courts to exercise this statutory function. In fact, it is exactly what the Rule committee should be doing.

The rules might provide a non-exhaustive list of factors to consider insofar as relevant, such as:

  • The nature and extent of public interest in identification,
  • The importance of the open justice principle,
  • The public interest in the administration of justice, including the importance of encouraging full and frank disclosure,
  • The extent of any Art 8 interference occasioned by publication of the names of the parties in conjunction with the substantive information contained in the judgment,
  • The extent of any potential Art 8 interference on a third party, in particular a child (including any potential impact on their welfare as a function of Article 8),
  • Any potential interference with Article 6 rights of any party that might be occasioned by identification,
  • the nature of any disclosure in the case, including any issues of commercial / price sensitivity,
  • The overriding objective.

Refining the above roughed out list might be more controversial or challenging to draft, but the key is that it is not an exhaustive list.

This would obviate the need for many parties to make a protective application, and would reduce the consequential expense and court burden – these issues would only require detailed consideration in a case where is a genuinely live issue. The press would only need to be put on notice where there was really a live issue (or where they wished to raise one), whereas presently there is a risk they will be swamped by applications of little to no interest to them. Guidance to any such rules would need to make clear that if the court was asked to determine the question of anonymity there would be no presumptive approach to the court’s determination and the Re S exercise would need to be applied from a clean slate basis.

This would not relieve the judge of the obligation to consider the proper balancing of rights in the individual case as per Re S, but it would ensure that the process of deciding was efficient and properly framed (in my own experience judges do not always provide the parties with prior notice of a decision to publish or of their decisions on redaction / anonymisation – and this cannot be consistent with Re S. They must be given the opportunity to make representations before publication).

 

Not a silo – Implications for children cases

 

Switching to my children lawyer hat for just a moment (you see, I told you there would be something for children lawyers): I am still scratching my head about this seriously important question, which arises from Mostyn 2’s world view. If Mostyn 2 is right, and ‘private’ in FPR 27.11 does not actually mean ‘private’ at all because of the 2009 rule changes – does s12 Administration of Justice Act 1960 have any effect in Children Act 1989 proceedings, where the same rules apply? Private cannot mean private in one type of case whilst meaning something different in other cases, can it?

The FPR defines ‘private’ as for the purposes of the rules only. It does not and cannot change the meaning of private in s12. S12 doesn’t define ‘private’ beyond saying that it include[s] references to a court sitting in camera or in chambers’, which must mean it has a potentially wider scope than sitting in camera or in chambers.

If a hearing which non-parties are entitled to observe is not in fact ‘private’ in the s12 sense (which must be the import of Xanthopolous if correct, regardless of how the rules deploy the FPR version of the term ‘private’), then s12 protection has been inadvertently stripped away from children proceedings by virtue of the 2009 rule changes. It is tempting to say that this cannot be right and therefore it isn’t. The Court of Protection disapplied the chilling effect of s12 by simply stopping sitting in private. If the Family Court has accidentally done the same by sitting ‘as if in open court’ all this time, surely the consequence must be the same for both financial remedy and children cases?

Answers on a postcard…preferably not a 9,000 word postcard.

 

This post has also appeared on The Transparency Project blog and the Financial Remedies Journal.

 

 

 

Panorama – Protecting Our Children – A Balancing Act

Ironically, given the title, the preponderant comment I’ve seen about this Panorama (even before it was aired tonight) is a complaint about a lack of balance. Social workers (because it did seem mainly to be social workers making such comments on my social media when a post by Community Care magazine popped up on my Facebook feed) are not, it turns out, clairvoyant – either when it comes to predicting the risk of future harm to a child or when predicting whether an unseen documentary will show balance. Because it was actually pretty balanced.

I’m not completely impartial, of course – I have two connections to this documentary that I should own up to before going further. One is that the journalist who was behind it and who fronted it (Louise Tickle) is a former client of mine (and a colleague in other capacities), and the other is that two of the parents interviewed for the programme are my former clients. I’m not going to comment on their case beyond inviting those who are interested to read the judgment, and to observe that, insofar as ‘my’ case is concerned, the documentary was fair and balanced and properly reflected the court’s findings after a long and careful court process and trial. At least some of the other cases covered are also the subject of published judgments so anyone who is worried about a lack of balance can check those out for themselves. Just go to Bailii.org and search for keywords ‘Hereford’ and ‘Keehan’. If you need to narrow your search you could add in the word ‘egregious’ or ‘failure’.

Anyway, I was shocked at the time of my Keehan / Herefordshire case, about the fifty shades of dismay that emerged as the case progressed, and I defy anyone who has read the judgment to be at all surprised to hear the sort of comments that came from the adoptive parents in that case (voiced up by actors to protect their identity and those of the children). Of course they are angry and upset.

What I came here to say – intentionally pretty much immediately after I watched the show, since everyone else has shot from the hip – is this…

It is so depressing to see people rush to judgment before they have even seen the programme. Based on their jaundiced views of the media generally, their negative views of the previous work of this journalist or upon their general defensiveness against any criticism of their profession.

It is just as depressing to see them shoot off having seen the show without going away to read the actual findings of the court (it was pretty obvious from some of the post-show comments I’ve seen that some still believed the show to have aired spin rather than the conclusions of the court – even though the judgments were specifically quoted).

It’s even more depressing to see people (mostly social workers) complaining that a journalist has chosen to write about local authority failure rather than all the good things that social workers do. Social workers are under-resourced, over-worked, their task, skills and dedication under-appreciated, and they are often wrongly criticised (most of which is repeatedly acknowledged in the documentary by the way). But people don’t make documentaries about stuff that is working ok. Firstly because nobody would watch it. And secondly because it’s much more important to expose things that are going wrong. Over the last few years I’ve learnt quite a lot about how print and broadcast journalism works and I’d bet my house that you’d never get such a show commissioned let alone to air (if you want to get a sense of how much work goes into getting something like this through see Louise’s tweet thread earlier here).

More to the point : this was not an example of social workers wrongly criticised by the venal media. This was an example of local authorities RIGHTLY criticised – by a judge. Repeatedly. After proper scrutiny. And of a public service broadcaster bringing that – already largely public – information to a wider audience, and in a format that they can better engage with than several lengthy detailed and excoriating judgments. I’ve seen several outraged comments from tweeters who had clearly never heard of the twins case until they saw this programme. But it’s all out there in the public domain. That’s the power of the broadcast media. It has reach and it has impact that mere publication of a judgment in some internet backwater.

And what I also noticed when I watched this programme was that – right from the start – the script was actually pretty sympathetic about the chronic difficulties social workers face – asking in the opening section ‘Are social workers properly supported to decide who is at risk and who isn’t?’, and going on to involve respected social work academics to help show the systemic problems that sometimes contribute to or cause failures of the sort that happened in these Herefordshire cases, and which touched upon the impossible decisions that social workers are often called upon to make.

There was no blaming of individual social workers by the presenter or academic interviewees (although Mrs Justice Lieven had given permission for the social workers in one case to be named, in fact they weren’t). There was scrutiny of the system. Which on any sensible view has gone horribly wrong for quite a lot of families in Herefordshire. And possibly more widely. At a time when the Care Review is about to be published and our news is full again of horrific stories of small children dying and possible safeguarding failures this sort of public debate is pretty critical. Difficult, but you don’t solve a problem by ignoring it and patting social workers on the back. You solve a problem by making systemic change that supports families and supports social workers.

No, the only people you heard in the programme directly criticising social individual workers, attributing to them motivations which I know most social workers would feel hurt, uncomfortable and affronted to hear – was the families (both parents and in one case a young person who had been in foster care). They were aggrieved. They were hurting. They were angry. At the harm caused, at the time lost with their families, at the stigma, confusion and anxiety they had felt and continued to feel.

Their perspectives are of course not ‘neutral’ (whatever that means), and what they choose to focus on is inevitably only going to be a tiny part of the bigger picture. But it’s their story and their experience, and it’s how it felt to them. They are describing what state interference with their Article 8 of the European Convention of Human Rights feels like – they are bringing the law off the page. This is how it feels to lots of families – both to those who are actually ‘wronged’ by social services, and sometimes to those who are caused pain by social workers who are simply doing the right and necessary thing. And I think we should respect and listen to those stories and give them some validation. It is easier to discredit or turn away from those accounts that are dissonant from our internal narratives that we are good actors doing the right and necessary thing to protect and rescue children – but part of good judgment (as a social worker, a lawyer or a judge) is about tolerating, listening to and thinking about the impact of our actions on others – and asking whether stepping in and removing might be more harmful than leaving a child at home. If we stop listening to parents when they push back – even though they sometimes say things that are difficult to hear, unfair, or even unreliable – then we may well find we resemble the criticisms of some of those panorama parents rather more than we care to believe.

Those parents talked about feeling judged and not listened to. When I see those hackneyed old knee-jerk complaints of ‘but it’s not fair, Miss!’ that I’ve heard a hundred times before whenever anyone wants to talk about social work gone wrong, I think those parents might have a point. They aren’t always listened to. And sometimes they are right.

Any professional with life changing responsibilities has to be able to tolerate a level of challenge and a level of accountability. That’s hard (I know it’s hard because lawyers get exactly the same blame for judgment calls we’ve made, and for things that we can’t change, too). But it’s not really optional if we want to be trusted and respected.

I’ve not tried to re-locate and quote from specific tweets and comments I’ve seen – I’ve been intentionally broad brush about the themes I saw this morning, and again post-airing. But it’s right to say that this ‘Why don’t you ever talk about how we save children from abuse?’ whataboutery-type response to journalism that has scrutiny rather than PR as its aim, is fortunately not the whole picture. From what I have seen so far, the show has also prompted a much wider range of responses than that, many positive or at least constructive. And that is what it’s about : Public awareness, debate, disagreement and maybe change – not shutting down of criticism and battening down of hatches.

And now I should stop fretting about stuff I’ve seen on the internet and go to bed.