Open justice: family law developments in 2019

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A common law principle

 

It is well-known that Civil Procedure Act 1997 and the Civil Procedure Rules 1998 made under that Act ghettoised family proceedings, with effect – eventually – from April 2011 when Family Procedure Rules 2010 (FPR 2010) were finally made. From then civil proceedings rules (as had hitherto been the case: Rules of the Supreme Court 1965 etc) ceased directly to apply to family proceedings. The law which governs all proceedings is the common law; but procedure fissiparates increasingly as time goes on.

 

Eminent amongst common law principles is open justice rules, briefly, elegantly and authoritatively defined by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

“[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.”

 

So – over the past twelve months – how has the common law been considered and developed in the area of open justice, in family proceedings and in other common law cases which apply to family law? The subject is not just a question of saying a hearing will be ‘in private’ (FPR 2010 r 27.10) or not (see eg FPR 2010 r 30.12A). It encompasses also such subjects as:

 

  • Release of court material before, during and after a hearing
  • Anonymity of parties and witnesses
  • Reporting restrictions and publication of law reports and of what happens in courts

 

Court material

 

The high point of open justice litigation in 2019 is the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where Mr Dring, on behalf of asbestosis victims (not parties to the litigation), sought release of documents in a case which concerned asbestos and which had been settled. A High Court master made a wide release order. The Court of Appeal narrowed this order; and against cross appeals by both parties the Supreme Court upheld the appeal order. The position defined by the Supreme Court is significant on release of court materials (and see this) from all forms of court proceedings (civil, family, criminal etc).

 

The Supreme Court examined to what extent can any court in its inherent jurisdiction and under CPR 1998 r 5.4C (or principles derived from that rule in non-CPR 1998 jurisdictions) direct release of court material to a non-party. Giving further Supreme Court impetus to Guardian v Westminster (above) it was held that the following material can be released by order of a court:

 

  • skeleton arguments and other written submissions (Cape Intermediate in CA at [69]; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984);
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports, but not exhibits to these; and
  • any other document which it is necessary for the court to release to comply with the open justice principle.

 

The significance of this for family lawyers is that the Supreme Court emphasised that these principles apply to all proceedings regulated by the common law, which includes family proceedings. Certain redactions and anonymisation – for example children’s, and maybe certain parties’, names – but application can still be made within the terms of Cape Intermediate v Dring.

 

On release of court material generally see here. A lot remains to be done to help those attending court to make sense of hearings and if they are to be properly said to be open court hearings (as Lord Scarman pointed out nearly forty years ago in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). But that is another case, another day…

 

Anonymity

 

Anonymity is a crucial aspect of the open justice principle (see for example, PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251 and Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351); but the principles on which it is based in first instance family proceedings – and as the law now stands – is difficult to define, outside children proceedings. For example in CB v KB [2019] EWFC 78 (20 December 2019), Mostyn J the parties were accorded anonymity; but I am told it is not difficult to identify the pop-singer from the description provided on the back-ground to the formation of his group set out by Mostyn J in [6] and [7] of his judgment. In a recent children’s case, anonymisation extended only so far as to move by one letter of the alphabet all the parties’ initials; so if initials would identify them the judge’s anonymisation was limited.

 

On anonymity generally, the position in the Court of Appeal is clear (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426): full publicity of names in the absence of a court order. The position in children proceedings (as to the children) is clear. But beyond that? For example, of published financial relief first instance proceedings of the 20 I have noted only six are anonymised.

 

So how to advise a client whose proceedings are to be heard in a family court? A starting point must be AAA and ors v Rakoff and ors [2019] EWHC 2525 (QB), Nicklin J (now Lupu etc -v- Rakoff etc) where a group of pole dancers were refused anonymity in their proposed litigation. As explained in “In praise of the common law: sources of law and open justice” the case concerned claimants, nine of whom were pole dancers.  They brought proceedings seeking to restrain the defendant from using video footage of them. The first defendant was a group called ‘Not Buying It’, which campaigns against sexual entertainment venues. Anonymity was the first – and main – issue dealt with by Nicklin J.

 

Anonymity: withholding a name and reporting restrictions

 

Any anonymisation application has two parts said Nicklin J: (1) to withhold the name of the relevant party in the proceedings; and (2) a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO)). To deal with these orders the judge summarises the case law – including Guardian v Westminster and Cape Intermediate v Dring (both above) which, as he says, underlies the open justice principle:

 

“[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.”

 

In Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB), Martin Spencer J a claimant applied for damages for psychiatric injury arising out of the stillbirth of her daughter. She was denied anonymity (CPR 1998 r 39.2(4) on anonymity applied). Further, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case (a similar point to that made by Gloster LJ in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (application for anonymity in appeal proceedings must be made on notice and should be made in the appellant’s notice). By contrast in XW v XH [2019] EWCA Civ 549 the appellant successfully applied for anonymity in a reporting restrictions order in the Court of Appeal (CPR 1998 Pt 52 and r 39.2(3)). She was an appellant wife who applied in advance of the hearing of her financial relief appeal. The Court of Appeal order was made due to interests of the parties’ child whose European Convention 1950 Art 8 rights were held to outweigh the Art 10 rights of the press.

 

In Re TT and YY [2019] EWHC 1823 (Fam) Sir Andrew McFarlane P, sitting in the Administrative Court and Family Division allowed a media appeal for removal of an anonymity order. The man wanted to be registered as father of a child to whom he had given birth, after his transition to male gender. The father had courted extensive publicity. Only the anonymity of the child was to be protected, said Sir Andrew.

 

Criminal and family proceedings

 

Plymouth City Council v Wilkins & Ors [2019] EWFC 70 – a case in which Baker LJ sat as a High Court judge (he had heard the case before his elevation) – has attracted a variety of publicity, mostly because it was heard as care proceedings (Children Act 1989 Pt 4) where the judge held that both parents were responsible for their child’s injuries; whilst in criminal proceedings only the mother was convicted. Charges against the father were withdrawn from the jury. The father sought a review of the decision in the care case; though, in effect, he withdrew from those proceedings. Baker LJ upheld his original Pt 4 proceedings decision.

 

All parties agreed that the child’s name should not be publicised. The mother said, subject to that, that judgments should be published without anonymisation. The father agreed, save that he wanted his name anonymised. The local authority and children’s guardian were neutral. The parents’ names were both publicised in the criminal proceedings. The judgments should be published, said Baker LJ, with only the child’s name withheld.

 

This subject will be of still more significance if the Domestic Abuse Bill – which combines respectively civil with criminal jurisdictions – finds its way onto the statute book. The critical feature in the Plymouth cases was not publicity, but respective standards of proof (crime and civil). That issue, as far as I can tell, is not dealt with in the draft bill.

 

Reporting restrictions

 

The subject of reporting restrictions – which are so central to the publication limitations in AJA 1960 s 12(1) – received little case law publicity. In AB (Application for Reporting Restrictions: Inquest) [2019] EWHC 1668 (QB) Pepperall J dealt with a local authority’s application for a reporting restrictions order (supposedly under Children and Young Person’s Act 1933 s 39) for an inquest to protect evidence as to a 17 year old and her suicide from members of her family. Proper notice had not been given to the press ([11]-[18]). The application was refused. As framed, in the High Court, it could only be in the inherent jurisdiction (see [24]); and Pepperall J was not prepared to exercise any inherent jurisdiction he might have. If any application could be made it must be in the coroner’s court.

 

A persistent them of case law in the area of restrictions on open justice is that if application is to be made for any restriction, it must be made on proper notice (despite what is said on the subject in President’s guidance as to reporting in the family courts, 3 October 2019 (below)) to the court and, as need be, to the Press Association (see per INDO (above)). The role of an accredited media representative (FPR 2010 r 27.11(2)(f)) and their party status is not dealt with in the guidance; nor was it considered by R (A Child) (below).

 

R (A Child) [2019] EWCA Civ 482 was a journalist’s successful attempt to have a reporting restrictions order lifted and where facts had already been aired on the mother’s successful earlier appeal to the Court of Appeal. The hearing was a rare example of the Court of Appeal permitting itself to be used for a publicity exercise. There was no real issue on this appeal. Everyone in court agreed that the judge had been wrong in the order he made and that a reporting restrictions order was inappropriate. The case is of no precedent value.

 

Reporting restrictions: publication of family courts material

 

The wild-west of civil courts is represented by committal applications for alleged contempt of court. The Court of Appeal records a number of examples of circuit judges shooting from their hips. Recent examples – neither family cases where individuals were recently and unlawfully sent to prison – include: Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 (claimant witness sent to prison immediately with claim struck out where he sent emails to his solicitor and spoke to another person: Court of Appeal appealled for “A measured approach” by judges) and Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55 (imprisonment for breach of an order, where no self-incrimination privilege warning was given, no legal aid and no chance for proper mitigation).

 

The family equivalent of these cases was Re Nasrullah Mursalin [2019] EWCA Civ 1559 where a committal order (suspended) was made by a circuit judge was set aside. A paralegal mistakenly sent family proceedings papers (contrary to Administration of Justice Act 1960 s 12(1)(a) and FPR 2010 r 12.73(1)) to an immigration tribunal. The appellant had no proper opportunity to obtain legal aid or to plead mitigation. More serious points, not explored by the Court of Appeal, were:

 

  • Did a circuit judge even have power to make any order on a committal application (no)?
  • Was this ‘publication’ at all in terms of AJA 1960 s 12(1)(a) (probably, yes); but
  • What is the guilty intent (mens rea) required for a case under s 12(1) (see eg Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA: over 40 years old, but still important law and a very strong unanimous Court of Appeal).

 

A model for dealing with committal was provided by HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin), the QB Divisional Court consisting of Sharpe LJ and Warby J, including:

 

  • Breach of a Crown Court Contempt of Court Act 1981 s 4(2) reporting restrictions order (postponement of reporting of proceedings held in public where reporting might prejudice administration of justice) ([45]-[66]);
  • Breach of the rule as to strict liability on a respondent where immoderate words are used ([67]-[77]); and
  • Interference at common law with administration of justice ([78]-[88]).

 

Contempt was found under all heads and the respondent was later given a sentence of nine-months (decision appended to report).

 

“Guidance” on release of material

 

The President’s guidance as to reporting in the family courts, 3 October 2019 is not law, still less is it common law: it is merely guidance. It is an odd document if only because the President seems to be advising that process be issued without court fee or proper notice to anyone. I would expect most judges to be unhappy with such a free-wheeling approach, even in family courts. I am sure HM Courts and Tribunal Service will be wary, and the Treasury will not allow a court fee to be waived (if it finds out).

 

The President’s office confirms the guidance applies to all family proceedings; yet of costs (para 16) the guidance says “the standard approach as to costs in children cases will apply” (ie almost invariably no costs order). Why “children cases” where many family cases may have nothing to do with children? Costs orders are an area where a variety of law applies to the miscellany of family proceedings (in addition being a question for the discretion of the judge: Senior Courts Act 1981 s 51(3)). If it is a commercial media organisation which has made the application and put all parties to expense, why should they not pay if their application is not successful (CPR 1998 r 44.2(2): costs of successful party generally to be paid by the unsuccessful party)?

 

Anonymity for pole dancers

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Private hearing; but when to be anonymised?

 

If you have to tell a client whether their family court hearing will be dealt with anonymously or not (ie their names to remain confidential), the best thing they can do is toss a coin – certainly if their hearing is before a High Court judge. Hearings of family cases under Family Procedure Rules 2010 (FPR 2010) are – says a court rule (FPR 2010 r 27.10) – to be ‘in private’. That does not tell you whether your name will be public or not, save in the case of a child and (probably) of parents in children proceedings. Just because your case is heard in private is no guarantee your name will be kept secret.

 

For example, of all the first instance financial relief cases in front of High Court judges, over the past ten months, seventeen were reported; and of those seventeen, only four were anonymised. The remaining thirteen were all between named parties. Because the hearing is in private does not mean the parties will be anonymous. This proposition – the link between a private hearing and anonymity – draws support from CPR 1998 r 39.2 which treats as one step that parties may seek an order for a hearing (or part of it) to be in private (r 39.2(3)). Anonymity is dealt with as a separate application to the court under CPR 1998 r 39.2(4)).

 

In the Court of Appeal your name will unquestionably be public (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426), unless for exceptional reasons – see summary in CPR 1998 r 39.2(3) – you can persuade a Lord/Lady Justice you should be anonymous; or that the appeal is by or on behalf or about, a child or, perhaps other protected parties (CPR 1998 Pt 21).

 

Application for anonymity

 

So, on what basis can a party seek to be anonymous in civil proceedings? This was considered in detail by Nicklin J in AAA (and others) -v- Rakoff (and others) [2019] EWHC 2525 (QB) (30 September 2019). The case concerned claimants, nine of whom were dancers and at a club known as Spearmint Rhino (the tenth claimant).  They brought proceedings seeking to restrain the defendant from using video footage it had obtained within the clubs. The first defendant was the chief executive of the second defendant, a group called ‘Not Buying It’, which campaigns against sexual entertainment venues.

 

The finer CPR 1998 aspects of the case can be found at ‘Service of the claim form issues, anonymity, expedited trials and … Spearmint Rhino’ . This article looks at the question of anonymity which was the preliminary issue in the case dealt with by Nicklin J.

 

Nicklin J explained that any application for anonymisation has two distinct parts: first an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 1998 r 16.2 (‘a CPR 16 Order’: perhaps PD16A para 2); and, secondly, a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO). Though the law outlined here applies in family proceedings there is no equivalent to CPR 1998 PD16A para 2).

 

Nicklin J draws on the INDO guidance, especially paras 9 to 14. He then moves to a tour de force to summarise the fundamental jurisprudence which underlies the open justice principle:

 

‘[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.’

 

The judge cited recent case law, namely R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (considered further here). Both of these cases were concerned with release of court material to non-parties. Elemental to both was the open justice principle on which English courts operate.

 

Open justice principle and anonymity

 

From these two important cases Nicklin J concluded:

 

‘[29] … That there are principally two categories of case in which derogations from open justice can be justified: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated: Attorney-General -v- Leveller Magazine Ltd [1979] AC 440, 457E…[and see Scott -v- Scott [1913] AC 417 per Viscount Haldane LC at 437-439].’

 

The second category of derogation – relating mostly to private matters – was summarised by Nicklin J as follows:

 

‘[30] Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses….’

 

The judge has form in this area of work. In AAA he provides a text-book summary of the law on open justice principles. And he refers a couple of times to Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB), (15 February 2018). When you look up that case you discover Nicklin J is the judge there as well. In both cases he shows how firm is his grasp of the relevant case law.

 

The conclusion for AAA and her fellow pole-dancers was that they would be denied anonymity (it does not seem they claimed a private hearing). The anonymity remains pending any appeal, and pending the disposal of that appeal if permission is given for it.

 

Khan and domestic abuse

 

From a family lawyer’s stand-point Khan is instructive. It was a harassment case between two brothers where both were refused anonymity, and were told their case would be heard in open court. Nicklin J made the following comment, which may be instructive when it comes to domestic abuse cases in family courts:

 

[90] … In most harassment claims, the disclosure of private information in open court is simply an incidence of the litigation and that is no different from any other civil case. But, unlike privacy claims, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court…. An anonymity order therefore cannot be justified on that basis. If there are discrete pieces of the evidence, that engage significant Article 8 rights, then the way to deal with that is not by blanket anonymisation, but by [targeted measures]. Put simply, any greater derogation from the principle of open justice is not necessary.

 

If anonymity is denied to two brothers, why not the same for couples who have been living together, and one (or both) make allegations that the other has been abusive? Unless the privacy interests of children are engaged (concerning which see Keene LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at [120]-[122]), there is no reason why domestic abuse cases should be heard in secret; and probably every reason why they should be heard in open court.

Anonymity: private and public proceedings

20160419_174504Open justice principle

 

Anonymity in relation to court proceedings tends to go with privacy (or secrecy) in proceedings, notably in family proceedings. The default position in all proceedings remains open justice, and therefore that names can be publicised. This is the open justice principle whose rationale was clearly asserted (amongst many examples) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?… In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said… ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’

 

In civil proceedings generally (including all appeals to the Court of Appeal) the general rule is that hearings are in open court (common law (above); CPR 1998 r 39.2(1)). This rule applies to divorce proceedings (FPR 2010 r 7.16(1)), and may apply to certain other family proceedings if the judge prefers to rely on common law rather than to a rule which only partially states it (ie that all family proceedings should be in ‘private’: FPR 2010 r 29.10)).

 

If the court says so, a hearing may be in private. In effect CPR 1998 r 39.2(3) and FPR 2010 r 7.16(3) says the same thing namely, that a hearing may be in private if amongst other factors:

 

(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;… or

(f) the court considers this to be necessary, in the interests of justice.

 

Anonymity and Civil Procedure Rules 1998

 

Thus in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (8 March 2019), Martin Spencer J a claimant who sought damages for psychiatric injury arising out of the stillbirth of her daughter was denied anonymity: none of the exceptions in CPR 1998 r 39.2(3) applied. Anyway, said the judge, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case.

 

By contrast, in XW v XH [2019] EWCA Civ 549 (2 April 2019), the Court of Appeal dealt with a financial relief appeal. The couple’s son had a life-threatening condition. At the conclusion of the trial below the judge had made a reporting restrictions order. He anonymised the names of various people and redacted part of his judgment, saying there was little if any public interest in knowing the family’s identity. The appeal court referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (where the wife’s application for anonymity in financial relief appeal proceedings failed) from which it extracted the following:

 

  • In a financial remedy appeal, a formal application must be made for restrictions or reporting and for anonymity;
  • only exceptionally would an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal: parties were not routinely entitled to anonymity and the preservation of confidentiality in their financial affairs
  • parties could not waive the rights of the public by consent: the decision was the court’s, having conducted the balancing exercise in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (and see R v Legal Aid Board exp Kaim Todner[1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J);
  • the Court of Appeal would pay close regard to any anonymity order made by the first instance judge, although such orders were not binding (eg because of the different starting points for the respective courts);
  • the interests of a child might render it necessary to restrict public reporting of certain information in financial relief cases, K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA Civ 550, Norman and Re S followed

 

Anonymity and divorce proceedings

 

On the assumption that anonymity is normally denied where a hearing is in open court, two recent divorce cases give pause for thought. Exceptionally for family proceedings, the same open court rules apply to divorce as to all civil proceedings. The foundation case for modern open court principles remains a nullity case – ie now Matrimonial Causes Act 1973 (MCA 1973: ie divorce) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where their lordships seemed astonished to think anyone could have thought the case should be heard in private. In AJ v DM [2019] EWHC 702 (Fam) (6 March 2019), Cohen J considered whether a wife’s divorce petition should be amended. There were other jurisdiction issues; but nothing in his judgement explains why the divorce aspect of the case – albeit that it might be said to be case management – should be anonymised as the rubric to the report says is the case.

 

M v P [2019] EWFC 14 (22 March 2019) was Sir James Munby’s marathon explanation (judgment post Presidential retirement) as to why a decree nisi based on a petition pleaded wrongly (couple married for less than 2 years at time of filing who claimed they had lived apart for two years, amended after decree to MCA 1973 s 1(2)(b) (behaviour)) was voidable. The court he said had power to find the decree absolute voidable – not void (ie in that cases, any remarriage would have been bigamous). The former President heard the case in open court. He allowed unrestricted reporting, but gave anonymity to the parties. At the end of the hearing he said that the reporting restrictions order should be continued indefinitely the parties full anonymity. He comes close to treating this as a matter of discretion (see [115]): ie for him to decide as he saw fit, not according to legal principle; and, for example he made no reference to the common law principles summarised in FPR 2010 r 7.16(3) (above).

 

Appeals: family proceedings

 

Many appeals in family proceedings are to the High Court. These may be in open court (FPR 2010 r 39.12A(2)(a) since December 2018); though the rule does not say in what circumstances. In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J created an unusual precedent (for commentary on the case see ‘Not a vacuum but a low pressure vessel’ (Seusspiciousminds) and ‘CS v SBH: a child’s competence to appoint her own lawyer’ (Transparency Project)). He was to have heard a child law appeal in open court; but because a solicitor who wished to appear as advocate to represent the child did not have higher rights, he decided to switch the appeal to be heard in chambers (see [22]).

 

No clear principle is yet laid down as to when an appeal under r 30.12A should not be in open court, which – after such cases as Norman v Norman (above) – might be thought to be the norm. But to diverge from principle because of the rights of audience accorded to a particular advocate may be thought original. It being a children case no question of anonymity was in issue.

 

FPR 2010 r 30.12A(4) suggests that a practice direction may deal with when a family hearing is to be in open court; but none has yet been made. The rule does not deal with anonymity, save – indirectly – in that secrecy of a hearing is likely to connote anonymity also.

 

Procedure

 

Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).

 

Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.