Rights: privacy, anonymity and freedom of expression on family cases

‘Open justice’ in family proceedings

 

As a High Court judge (Mostyn J) has commented (in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) rights to open justice in family proceedings are a mess; though – sad to say, and as will be seen below (the Carmarthenshire case) – he has done his own bit to stir the muddled pot.

 

Family lawyers are debating whether financial relief hearings (an important part of the family courts’ work) should be in open court or in private (as FPR 2010 r 27.10 – though without any statutory or common law underlay) says they must be. Different Family Division judges take different views (and Mostyn J is one of the noisier ones on the subject).

 

Three cases in the last month remind lawyers generally of the variety of application of open justice principles:

 

  • The predominant issue is whether a case should be heard in public as common law has long required (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and see eg ‘To be heard in the dining hall…’: Scott 100 years on). Subsidiary to this are, for exampe:
  • Anonymity for a party to proceedings; or to a witness or others (eg expert witnesses, social workers etc) involved in the case (eg Khuja below);
  • Release of court and other hearing documents (a consequence of the Carmathen case below);
  • Publicity for a private (eg children) case (and the balance to be struck between privacy (European Convention 1950 Art 8) and freedom of expression (Art 10) (eg Southend case below).

 

Khuja : ‘what’s in a name?

 

Khuja v Times Newspapers Ltd [2017] UKSC 49 relates to the open justice principle and a person’s involvement – though not charged – in criminal proceedings. Charges arose from facts which are directly of concern to family lawyers, namely child sexual abuse (see eg Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam), [2015] 2 FLR 763 Keehan J). As Lord Sumption said (giving judgement for the 5:2 justice majority):

 

[1] For some years The Times and other media organisations have taken a close interest in investigating and reporting on allegations that the police and child protection authorities have failed adequately to confront a pattern of crime involving the sexual exploitation of vulnerable young teenage girls by older men. It need hardly be said that this is a subject of serious public concern. It has given rise to a number of government-ordered national inquiries, a review of standards of protection in children’s homes, and substantial changes in the procedures of the police and prosecuting authorities for handling such cases.

 

Nine men were tried on charges involving organised child sex in the Oxford area. Seven men were convicted. Khuja had been arrested, but not charged. After his release without charge, the newspapers successfully applied to lift an order preventing his identification. Khuja wanted to maintain a reporting restrictions order. The newspapers said that Khuja was ‘someone suspected by the police of being involved in sexual offences against children’. They wished to publish information about him ‘confined to material derived from the proceedings at the trial’ (§[4]).

 

The majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed: Lords Kerr and Wilson were the minority) noted that the appellant was seeking to prohibit the reporting of matters discussed at public trial. These were not matters where he had any reasonable expectation of privacy. The impact on the appellant’s family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family.

 

The public interest in allowing the press reporting of court proceedings extends to the appellant’s identity, said Lord Sumption. Media reporting of cases depends on the right of the public to be informed about public acts of the state, balanced against the law’s recognition that how a story is presented is a matter of editorial judgment.

 

Finally, what does a name matter? ‘What’s in a name? asked Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (and see Lord Sumption at §[29]). Lord Rodger answered himself:

 

‘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. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, §[39] … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, §[59], ‘judges are not newspaper editors’.

 

Parents’ right to petition Parliament: Southend case

 

In Southend Borough Council v CO [2017] EWHC 1949 (Fam) MacDonald J considered a case in which parents of two children on whom placement orders had been made had publicised information about them on Facebook and had organised a petition on Change.org.  (Whether the mother had appealed against the placement order was not entirely clear to the judge.) By the time he came to deal with the case the parents – representing themselves – had agreed to the local authority’s application that information be removed from Facebook and other media. However, the mother insisted on their right to pursue their petition ‘addressed to the United Kingdom Parliament and the Prime Minister’. The consequences of any such right for freedom of expression was the issue on which MacDonald J gave judgment.

 

MacDonald J described Change.org as a ‘website that allows people or organisations to start a petition. Once a petition is started, members of the public can sign the petition electronically subject to providing their first and last name, their email address and their postcode’ (§[9]). It has ‘community guidelines’ which include particular reference to safeguarding children and their protection.

 

The local authority based their application on their concern to protect a child’s private life. The mother wanted the petition to remain in place ‘so that she could have her say with respect to a decision that she does not agree with’ (§[16]).

 

After an extensive review of the law, the judge agreed with the mother. The reporting restrictions order remained to the extent agreed between the parties, but not including any restriction on the mother’s right by her petition to advertise her disagreement with the court’s placement order decisions.

 

Right to freedom of expression

 

On the facts of this case (not as a general approach to on-line petitions: §[66]) the judge set out his decision at §[62]. He balanced the rights of the parents to freedom of expression under Convention Art 10 (especially ‘parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress’) against the Art 8 right of the children. He applied the ‘ultimate balancing test’ or proportionality (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at §[17]) and held that:

 

[62] … It cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

 

Release of hearings documents

 

The third case is little more than a post-script in all this; but it provides a useful illustration of some of the points considered in ‘Release of court hearing documents’. What documents – when and why? – may a court release to non-parties. What rights to freedom of expression (European Convention 1950 Art 10) do parents have?

 

In Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017), Mostyn J considered a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings, but he does not say so). This might have been clearer if Mostyn J had remembered – or been reminded by one of the nine barristers in court – of the following comment of his:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at §[16]). In law, there are real question on this as explained in ‘Release of court hearing documents’ (above). Thus, in Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1, Mostyn J was dealing with an application by the press for reporting restrictions to be lifted for the ancillary relief hearing of well-known musicians (and see Mostyn J in DL v SL [2015] EWHC 2621 (Fam); [2016] 2 FLR 552, also reported as L v L (Ancillary Relief Proceedings: Anonymity)  [2016] 1 WLR 1259). Save to a very limited extent (eg photographs of arrival at court) a reporting restrictions order was retained. Mostyn J [2015] EWHC 2689 (Fam) at [12] and [13], adopts Sir Mark’s “watchdog” role for the press:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR  r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly.

 

I think Lords Scarman and Bingham – and probably Sir James Munby P (see eg Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, Munby J – would have reminded Mostyn J of the importance of helping the press, in its ‘watchdog role’ – to make sense of proceedings. Transparency in the family courts remains a poor shadow of what it could be if – even if they are let in – the media and public can make no sense of the facts of what is going on.

 

And in terms of rights? The media have rights to freedom of expression as much as do parents to petition parliament; so long as, in each case, the children invloved remain anonymous.

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…and a small voice in me wept for justice

Open justice principle and ECHR

The most recent addition to the Family Division bench McDonald J could be heard uttering – in H v A (No2) [2015] EWHC 2630 (Fam), McDonald J (17 September 2015) – the following (and, as I read it, a small voice in me wept for justice):

[26] Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and (italics added), accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of the European Convention. In some cases other rights will also fall to be placed in the balance.

McDonald J had just quoted this ‘succinct’ summary from a judgment of Sir James Munby P in on the subject of privacy in family proceedings in Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 as follows:

[21] What may be called the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child… So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

[22] The court has power both to relax and to add to the ‘automatic restraints’. In exercising this jurisdiction the court must conduct the ‘balancing exercise’ described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47… This necessitates what Lord Steyn in Re S, para [17], called ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention)…. As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para [25], it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para [33].

Common law and exceptions to the OJP

Look at the italicised passage above, again. According to Toulson LJ (in a passage not cited in either of the above two Family Division citations) the roots of the open justice principle (‘OJP’: and we are talking children law here, so it is exceptions to the OJP we are concerned with) are the common law, simple and pure:

[1] … 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 in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477:

“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.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

Though only three years old that passage has been approved at least three times in the Supreme Court: Kennedy v The Charity Commission [2014] UKSC 20, A v British Broadcasting Corporation [2014] UKSC 25 and Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700. The common law roots of the principle can be seen from way before European Convention 1950 jurisprudence; and were stressed in such cases as Scott itself and Attorney General v Leveller Magazine Ltd [1979] AC 440.

Toulson LJ concluded his judgment as follows:

[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.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that Magistrates Courts were created by an Act of Parliament is neither here nor there. So for that matter was the Supreme Court, but the Supreme Court does not require statutory authority to determine how the principle of open justice should apply to its procedures.

He allowed the Guardian’s application to be permitted to read documents read by the district judge (magistrates’) before making her decision.

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

In Attorney-General v Leveller Lord Scarman stresses the common law point that it is for the judges in their inherent jurisdiction to determine exceptions to the rule, save where it is determined by statute (the point made by Munby P above). The child law jurisdiction has been treated, at common law (largely derived from wardship), as an exception; just as equity dictates that there should be an exception, if to publicise the subject matter of the dispute (eg patents) would destroy it; and national security can dictate privacy to proceedings (discussed fully in Leveller). These principles are noted in Administration of Justice Act 1960 and Civil Procedure Rules 1998 r 39.2(3); but they are not defined by them – any more than they are by European Convention 1950 jurisprudence.

A common law root: does it matter?

This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion: anyone who wants chapter and verse on that is welcome to ask me).

So yes, McDonald J’s was plainly the correct decision; but I do urge him and all his brothers and sisters on the bench to be aware of the source of their powers. A simple and sound introduction is Scott tempered by Scarman (especially) in Leveller. (He cites a nice case of a ward whose details were publicised – Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA including Scarman LJ – and William Deedes of the Daily Telegraph (orse ‘Dear Bill’) was not sent to prison, nor even was he in contempt. Nicholas Wilson (now Lord Wilson etc) was in it, being led by Waite QC (later LJ).

Re F is a live piece of law, though rarely cited, on the issue of whether Administration of Justice Act 1960 created new law, or declared the old. In effect the Court of Appeal held it declared the old; and that remains the case today; which brings this note full circle.

I would say, respectfully, that McDonald J should have said:

[26] …outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights defined by the common law, rather than under ECHR…

…. But then, who am I to say?

THE RIGHT PRINCIPLES; BUT NOT NECESSARILY IN THE RIGHT ORDER

… Or why ancillary relief proceedings must be public

Any court proceedings can be public (‘open court’: see eg JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96: a point misunderstood by Mostyn J in DL v SL [2015] EWHC 2621 (Fam) https://dbfamilylaw.wordpress.com/2015/09/22/mostyn-j-and-the-open-justice-principle/). Indeed, subject to a few exceptions (eg children; national security; the secrecy of the object of the case (eg confidentiality and patents); private finance) all must be in open court (the open justice principle (OJP)). Of those exceptions, the rule is that they may not be reported (see the Administration of Justice Act 1960 s 12(1): all this is considered at length in https://dbfamilylaw.wordpress.com/2015/09/22/mostyn-j-and-the-open-justice-principle/).

Open court proceedings (eg child settlement approval as JX MX explains) can be anonymised, to take court publicity away from a child or family. The hearing of the case is open to the public, and the court’s antics can thus made clear to all; but the parties names, their appearances, even an individual witness’s evidence given in private (see eg Attorney General v Leveller Magazine Ltd [1979] AC 440) can be anonymised. The case as a whole complies with the common law OJP (fully explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343).

Why the OJP is needed; and why mediation can profit from this case

AC v SC [2015] EWFC B76 (23 June 2015) is a decision of HHJ Wildblood in the Family Court (formerly a county court), which is an object lesson on why family justice needs the OJP. (By family justice I mean all family proceedings (not ‘family justice’ which tends to apply only to children proceedings). Yes, family law needs the OJP; but perhaps not for the reasons Judge Wildblood may have expected.

He made his decision on the husband’s appeal  – his only decision – in §[4] of what BAILII report; but then spent another thirty six paragraphs explaining obiter (ie background matter; and in reality a judicial indulgence, given the ease with which these cases are published) why he thought the anonymous district judge – who should have been named; but whom I’ll call ‘Terry’ – was wrong. I am not sure Terry was as wrong as Wildblood CJ asserts (had Terry clearly done the s 25(1) exercise). We shall never know. Under Wildblood’s wildblooded permission to appeal, the wife caved in and agreed to an order. Of any costs order, I know nothing.

I am grateful to Jonathan Herring in New Law Journal [2015] 4 September 2015 at 10 for drawing this case to our attention. I do not draw quite the same conclusions as Prof Herring from the ‘interesting question’ issue raised by him (p 11 col 2). I see plenty for mediators in the case: there is much in this case for the mediator, if they are clear as to the law; and if the law is made clearer for them (see separate article, to follow).

DJ’s failure to take account of the ‘highly relevant agreement’

In AC v SC Judge Wildblood concluded:

[39] Conclusion – I had no difficulty at all in accepting that permission to appeal must be given on the single issue before me. I had no doubt that the District Judge failed to take into account the highly relevant factor that an agreement had been reached on the term of the maintenance order and that his resultant analysis of the issue was plainly inadequate. Thus the appeal had to be allowed. The parties agreed that the order of the District Judge should be substituted by an order that contained a bar under section 28(1A) of the 1973 Act.

Thus his decision, affirmed; and then – rightly, it may be thought – some hubris on behalf of the Ministry of Justice:

[40] It is highly regrettable that people of such modest means should have been caught up in this expensive and flawed process. These are two hard working parents with three children who have had to face the sadness, disruption and financial burden of divorce. As I understand it, this was their first experience of the family court and they attempted to approach this case as litigants in person for most of the time. I can only imagine the tales that they will tell about the operation of that system. I asked them both not to turn the anger that they must undoubtedly feel about these experiences onto the relationship that they must still have with each other as parents of their much loved children.

But wait, but wait. Wildblood CJ makes it clear what he thinks are the complaints against Terry’s conduct of the case. Since this is but his view, and not necessary to his decision – ‘[4]… After only a few minutes of argument it was plain that permission to appeal on the single issue before me had to be given, and the appeal had to be allowed’; and ‘[counsel for the husband] had no difficulty whatsoever in showing that the District Judge had failed to take into account an essential (i.e. much more than relevant) matter, namely the agreement’ – then I am entitled to throw my hat into the ring.

Tangled litigation web around agreements

Yes wait: was Terry so badly wrong in the tangled web of litigation which can surround agreements in matrimonial cases? In ordinary life (which does not include family courts) agreements such as the following, would be enforceable:

  • That the house be transferred to the wife (W) [if there was a written memorandum per Law of Property (Miscellaneous Provisions) Act 1989 s 2(1): eg in the court order itself]
  • That there be a charge back to the husband: Mesher postponement terms agreed; but not the amount of the charge (see below)
  • Certain shares were to be transferred by W to the husband (H)
  • That periodical payments would be paid by H for five years non-extendable (Matrimonial Causes Act 1973 s 28A(1))

The parties had not agreed (see §[5]):

‘…i) the amount of global maintenance nor

‘ii) the extent/size of the charge back

‘iii) the means of repayment of HMRC debts

‘and the court needs to determine those figures at the further hearing listed below, together with the issue of repayment of the HMRC debt has to be reissued at the next hearing.’

From a mediation stand-point the DDJ cracked the case, narrowing the issues to those three; but without – I assume – herself certifying, in Livesey and MCA 1973 s 25(1) terms (see below) concerning what had been agreed and then ordered. That part of the deal was not sewn up by the DDJ – if, indeed, and under the present law, she could have done so.

I do not believe the law is as clear as counsel for the husband and Wildblood CJ made out.

Given that he had to try the ancillary relief application, I’d say Terry may not have been all that wrong in law; though not necessarily for the right reasons (like Eric Morecombe: playing all the right notes, but not necessarily in the right order). That is to say, if he didn’t mention at least:

  • Matrimonial Causes Act 1973 s 25(1)
  • Edgar v Edgar: and
  • Radmacher (below)

– then he was asking for trouble in the context of what happened. (A judge other than Wildblood, if directed to the above authorities (he did see Edgar), might have given the district judge an easier time; and even have refused the husband permission to appeal.)

Why not ask the DDJ to deal with it?

Did anyone – such as the DDJ herself – ask the parties if they would agree to DDJ O’Neill (‘the experienced deputy district judge’ §[5]) if she would try the outstanding issues which she listed ((i)-(iii) above). On Financial Dispute Resolution appointments the practice direction only tells part of the story (PD9A para 6.2: in certain respects this PD is obviously not unlawful: eg the Re D case cited says nothing of the sort that para 6.2 suggests):

In order for the FDR to be effective, parties must approach the occasion openly and without reserve. Non-disclosure of the content of such meetings is vital and is an essential prerequisite for fruitful discussion directed to the settlement of the dispute between the parties. The FDR appointment is an important part of the settlement process. As a consequence of Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231,evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in the very exceptional circumstances indicated in Re D.

What the draftsman is trying to say is that the meeting is covered by without prejudice rule immunity; but that immunity belongs jointly to the parties (see eg Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J) not to the court or any other mediator (which is the role judge perform at FDRs).

Edgar v Edgar

Wildblood CJ rightly refers to the Court of Appeal decision in Edgar v Edgar [1980] 1 WLR 1410, (1981) FLR 19, still the starting point in this jurisdiction; and re-affirmed by Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900.

In fact the starting point is Matrimonial Causes Act 1973 s 25(1) which, as Edgar asserts, places upon the judge who tries the ancillary relief application a ‘duty’ to consider all the circumstances (a point re-affirmed in the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813):

Under Section 25(1) it is the duty of the court to have regard to all the circumstances of the case, and, in particular, to the matters detailed in paragraphs (a) to (g), and to exercise its powers so as to place all parties, so far as practicable, and having regard to their conduct, just to do so, in the financial position they would have been in had the marriage not broken down. The ideal, of course, is rarely if ever, attainable; so, inevitably, in most cases, the phrase “so far as practicable” dominates the issue, modified, where relevant, by conduct.

To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it [emphasis added]…. So, the circumstances surrounding the making of the agreement are relevant…. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement….

Surely before he gave permission to appeal – which he seems to have done within minutes of the case being opened – Wildblood CJ should have considered the italicised passage above and given a short judgment upon it. (He says he heard no evidence (§[38]): appellate courts can hear evidence: Lifely v Lifely [2008] EWCA Civ 904 is a valuable example of the Court of Appeal so doing.) And, be it noted: the same Edgar/Livesey duty would have fallen upon the DDJ when she recorded the agreement in her order. Wildboold CJ does not consider these questions of law, as far as I can see.

Radmacher – ‘autonomy’

Of Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900 – which Wildblood CJ does not mention at all – all that need be said is (1) that it approved the Edgar principles (albeit specifically in relation to a pre-nup) and it asserted an ‘autonomy’ principle.

Does Wildblood CJ think that principle should apply to ancillary relief agreements? By implication he thinks so. It would have been helpful if, having considered Matrimonial Causes Act 1973 s 25(1) he had gone on to cite Radmacher and state his views.

Mediation and Herring’s ‘interesting question’

What the DDJ did leaves a massive and encouraging field open for mediators. At present the law is a tentative mess (another reason for open court hearings: how silly we family lawyers are on this subject; and poor Mr and Mrs C learned so to their cost.) Of that: more must follow. Watch this space….

MOSTYN J AND THE OPEN JUSTICE PRINCIPLE

A judicial view on open justice and ancillary relief proceedings

In DL v SL [2015] EWHC 2621 (Fam), dated 27 July 2015, Mostyn J delivered himself of his opinion on ‘the law (emphasis added) concerning the presence of the media in these private proceedings, which is contained in FPR 2010 r 27.11 and PD27B’. ‘The law’ is framed, says the judge, ‘to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them’.

This is the premise on which Mostyn J’s view is based. DL v SL is not, properly so-called, a ‘judgment’ (as it is described: http://www.bailii.org/ew/cases/EWHC/Fam/2015/2621.html). As far as I can see it decides no issue upon which the judge was asked to adjudicate.

Of rights and the open justice principle

Three features of English law are not touched upon by Mostyn J:

  • The rule in Jaffray (Jaffray v The Society of Lloyds [2007] EWCA Civ 586) – said by the Court of Appeal to be ‘trite law’ (at [6]-[7]): that rules cannot make or change the law. As will be explained it therefore follows that a rule, still less a practice direction, cannot change the common law.
  • The open justice principle – the open justice principle (OJP) is a common law construct (as explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343; approved by, amongst other Supreme Court cases, Kennedy v The Charity Commission [2014] UKSC 20: the common law and the variety of House of Lords/Supreme Court and Court of Appeal cases which explain it, was not referred to.
  • Fundamental rights: only be changed by express language or necessary implication – as Lord Hoffman explained in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien  [1999] UKHL 33; [2000] 2 AC 115:

In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document

A private court categorisation for ancillary relief proceedings

Mostyn J seeks to create the ancillary relief categorisation of private proceedings (see §[##] below). He does so by his take on JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96. In that case, a strong Court of Appeal (More-Bick, Black and Levison LJJ, including a prominent child lawyer in Black LJ) held that in the restricted circumstances of child settlement approval anonymity might be appropriate; but – as ever – on the basis that the hearing is public.

Mostyn J mentions the case, but not its conclusion, namely:

[33] An important aspect of justice is consistency. The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done. At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order prevent the administration of justice being brought into disrepute. This is an area in which fine distinctions are difficult to justify and not easily understood. Proceedings of this kind are sadly not uncommon and some or all of the issues to which this appeal gives rise regularly confront judges dealing with such applications. It appears that applications for anonymity orders are becoming more frequent and, according to the very experienced judge who dealt with the matter below, there is uncertainty among judges about the course that should be taken. In those circumstances we think it appropriate for us to provide some guidance for judges at first instance.

[34] In our view the court should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so. Such an order should be drawn in terms that prohibit publication of the name and address of the claimant and his or her immediate family and also (if not already covered) the name of his or her litigation friend. The court must also recognise, however, that the public and the Press have a legitimate interest both in observing the proceedings and making and receiving a report of them. Accordingly, the Press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, but for obvious reasons it will be unnecessary to notify the Press formally that an application for an anonymity order will be made. If the Press or any other party wishes to contend that an anonymity order should not be made, it will normally be necessary for it to file and serve on the claimant a statement setting out the nature of its case.

[35] With that in mind we suggest that the following principles should apply:

(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;

(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;

(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);

(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;

(v) 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;

(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;

(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.

A Court of Appeal decision like this – it was a judgment of the court – is a world away from Mostyn J’s opinionated attempts to fashion a legal system according to his reasoning, truly it is.

Order for preserving privacy: gagging order

Mostyn J went on, citing himself and others (though he does not extend the normal courtesy of reproducing his reference for all of us to read (an attempt to improve sales, perhaps?)):

[2] Accordingly, for the reasons that are set out in the book Financial Remedies Practice (Class Publishing, 2015 Edition) of which I, together with Sir Peter Singer, Lewis Marks QC and Gavin Smith are the authors, at paras 27.38 – 27.63, it is appropriate for me to make an order which preserves the privacy of the parties. Accordingly, I make an order in the following terms:

“The Media is prohibited from publishing any report of this case that –

(1) Identifies by name or location any person other than the advocates or the solicitors instructing them; or

(2) Refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.”

[3] The preceding paragraphs are the reasons given by me orally on 27 July 2015, with imperfections corrected by me. However, I made it clear at the time, particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted, that I would take the opportunity of expanding my reasons when the draft transcript of judgment was received from the transcribers. This I now do.

He goes on to cite Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), Roberts J; but not – perhaps unsurprisingly – my review of the case and OJP issues in August 2014 in Family Law News at http://www.familylaw.co.uk/news_and_comment/reporting-restrictions-in-financial-remedy-proceedings-a-review-after-case-management-in-cooper-hohn-v-hohn#.VgEtFN-qqko.

In that article I suggested that I was attempting –

… to provide a guide through the ‘rocky terrain’ [a quote of Mostyn J himself, from Roberts J]– limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. It involves a separation of family proceedings into: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960, s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960, s 12(1) are likely to be rare in financial remedy proceedings.

Common law or ‘sentiments’

Mostyn J warms to his theme; but perhaps confuses law with ‘sentiments’ (his word: see below):

[5] The principle of open justice has deep roots. Lord Bingham, writing in The Rule of Law (Allen Lane, 2010, p8), stated that at the heart of the concept of the rule of law is the principle that laws should be publicly made and publicly administered in the courts [Mostyn J’s emphasis].  He was reflecting Jeremy Bentham’s famous aphorism that “publicity is the very soul of justice” (Works, Vol 4, 1843). Bentham was seeking to answer Juvenal’s famous question: quis custodiet ipsos custodes? The reason why justice should be administered openly was that “it is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”. By virtue of publicity the corrupt judge would find himself condemned in “the court of public opinion”. In this way “justice becomes the mother of security”. These sentiments were strongly endorsed by the House of Lords in Scott v Scott [1913] AC 417. In more recent times Lord Widgery CJ said much the same thing in R v Socialist Workers Printers ex parte Attorney General [1975] QB 637, as did Lord Diplock in Home Office v Harman [1983] 1 AC 280 at 303 and Lord Steyn in Re S (a child)(Identification: Restrictions on Publication) [2004] UKHL 47 [2005] 1 AC 593 at para 30 (“the glare of contemporaneous publicity ensures that trials are properly conducted”). When Bentham was writing in 1843 there was, however, neither a developed appeal system (with published judgments) nor a regulated system of adjudicating complaints about judicial misconduct (the results of which are published in perpetuity on the internet). It might be thought that these developments have supplied an equally sure guard against improbity and an equally keen spur to exertion.

Mostyn J cites selectively: it is as if he is mounting an argument for a client, not giving a balanced judicial assessment. Thus, as Toulson LJ said in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 (of release of documents used by the court) the minority in Harman ultimately carried the day as the law was later changed (see CPR 1998 r 31.22):

[33] Lord Scarman, a thinker ahead of his time, said in Harman v Home Office [1983] 1 AC 280, 316:

“Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.”

[34] Lord Bingham CJ took matters further in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, 511-512:

“Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.”

‘Publicity of proceedings is not an absolute principle’

I regret to say that in the next sentence – the first of §[8] – Mostyn J shows the poverty of his grasp of the common law. A skim read of  http://www.familylaw.co.uk/news_and_comment/reporting-restrictions-in-financial-remedy-proceedings-a-review-after-case-management-in-cooper-hohn-v-hohn#.VgEtFN-qqko or of my ICLR blog at  ‘“To be heard in the dining hall…”: Scott 100 years on’ http://www.iclr.co.uk/to-be-heard-in-the-dining-hall-scott-100-years-on/ (and of some of the House of Lords and Supreme Court cases there cited: Mostyn J does not refer to them); or indeed of the seminal trio of (say) Scott, Attorney General v Leveller Magazine Ltd [1979] AC 440 and ota Guardian News will show – alongside European Convention 1950 Art 6(1) – how solipsistic is Mostyn J’s argument:

[8] But publicity of proceedings is not an absolute principle. Surely no-one would suggest that an adoption proceeding, which is heard completely privately, is by virtue of that privacy alone robbed of justice. Or that a civil arbitration, again heard in private, was an unjust process. There are some processes which by virtue of their subject matter should be heard in private. When Bentham wrote over 170 years ago adoption did not exist and I suppose that just about the only matter then justifying secrecy would have been national security.

The majority of the House of Lords cases on the open justice principle, from Scott onwards, stress the exceptional nature of children and adoption proceedings (see italicised passage in A v BBC at §[29] below).

The modern common law may be said to be most succinctly summarised by Lord Hodge in A v British Broadcasting Corporation [2014] UKSC 25 (another case not expressly considered by Mostyn J; and where a principled exception to the OJP was allowed, as explained by the Supreme Court):

[29] Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott [1913] AC 417, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor, of greater relevance to the present case, was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury considered wardship and lunacy to fall outside the scope of the general principle that justice should be administered in public, but accepted that proceedings concerning trade secrets, or to prevent the publication of private correspondence, were exceptions to that principle, observing at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:

As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

[30] A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:

But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”

After citing the dictum of Viscount Haldane which I also have cited, Lord Devlin continued at p 239:

That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”

[31] More recently still, the importance of the common law principle of open justice was emphasised by nine Justices of this court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38;[2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society (para 2). He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.

[32] It has also been recognised in the English case law, consistently with Lord Neuberger’s requirement of the degree of privacy being kept to a minimum, that where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information is withheld. In Attorney General v Leveller Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court might sit in camera in order to preserve the anonymity of a witness in the interests of national security, it could instead allow “a much less drastic derogation from the principle of open justice”, namely that the witness should give evidence in public but should be permitted to withhold his name from the public and the press. Viscount Dilhorne and Lord Edmund-Davies agreed that the court could do so, in the exercise of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively. Viscount Dilhorne gave as an example the practice of allowing a witness complaining of blackmail to withhold his identity from public disclosure in court, judicially approved in R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney General [1975] QB 637. The proposition that the court had no power to allow a witness’s name to be withheld from the public had been roundly rejected in that case: such a direction, it was held, was clearly preferable to an order for trial in camera where “the entire supervision by the public is gone” (p 652).

Categories of court business

Mostyn J seeks to create new law, in a ‘judgement’ which has no ratio. There was no issue tried (§[3] … I made it clear [on 27 July 2015], particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted….’, is the nearest one gets to an issue to be tried.)

He precedes this by a brief reference to the balancing test required by Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593; but he then seems to be saying that this ‘ultimate test’ is not necessary here – ie again, he tells us, he at least is entitled to ignore the House of Lords and Supreme Court. He decrees that ancillary relief proceedings are:

[10] … 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. These cases are those where the subject matter of the proceedings can rightly be categorised as “private business”. In a case of private business where the media are present (either by virtue of rules of court or a specific court order permitting that) an order for anonymisation will generally be made, if sought: see Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343[2010] 2 FLR 1290. Exceptions to this general rule are where the facts demonstrate disgraceful conduct: see Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427, or where they are so striking that anonymisation is in effect impossible: see, for example, McCartney v McCartney [2008] EWHC 401 (Fam) [2008] 1 FLR 1508. This principle, preserving privacy where the subject matter of the proceedings is private business, will be applied even where the rules provide for the hearing of the case in public: see JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96, which concerned the approval of a personal injury settlement in favour of a minor, at paras 17, 29 and 35.

The judge’s insouciance is almost breath-taking. The conclusion to JX MX is cited earlier in this article. JX MX did not ‘preserve privacy’. It preserved only anonymity. The court stressed that the hearing remained in open court (see italicised passage in §[34] from JX MX (above)).

‘Protected by the anonymity principle’

Ancillary relief proceedings are ‘protected by the anonymity principle’: what anonymity principle? Mostyn J has made it up. A judge – it is trite law – cannot extend the common law save as part of a decision-making process: ie where a case is argued. And then the judicial reasoning – rather special pleading (added numbers as [7] are dealt with in the text below):

[11] Ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle set out above. That they are so protected is to be deduced from a number of sources. First, and most obviously, [1] Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private. The fact that the media may attend the hearing pursuant to FPR 27.11 and PD27B does not alter the fact that the hearing is in private. Second, the process involves the extraction of highly personal and private information under compulsion which the recipient may not use save for the purposes of the proceedings: see [2] Clibbery v Allen (No 2) [2002] EWCA Civ 45[2002] 1 FLR 565, and Lykiardopulo v Lykiardopulo. Therefore, according to those authorities, the media may not report any such information without leave. Third, Article 14 of the 1966 International Covenant on Civil and Political Rights, which the UK ratified in 1976, stipulates that (a) the press or public can be excluded from all or part of the trial when the interest of the private lives of the parties so requires; and (b) that judgment is not required to be public where the proceedings concern matrimonial disputes. In my judgment [3] Article 14 creates a presumption against public judgment in matrimonial disputes, and therefore it logically follows that the proceedings should not be public either as otherwise the privacy of the judgment would be fatally undermined. It is trite law that when exercising a power a court should do so consistently with the state’s international obligations. Fourth, it is my firm opinion that the Judicial Proceedings (Regulation of Reports) Act 1926 applies not merely to the suit for divorce itself but also to the proceedings for ancillary relief. At the time it was passed ancillary relief was an intrinsic part of the divorce itself. Since it has been passed it has been extended to cover proceedings for maintenance under section 27 Matrimonial Causes Act 1973, and its civil partnership equivalent: see section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968. It would be bizarre if it applied to the now nearly obsolete form of maintenance proceedings that is section 27 of the 1973 Act but not to mainstream ancillary relief proceedings. [4] In Clibbery v Allen [2001] 2 FLR 819 Munby J (as he then was) held that the 1926 Act applied to ancillary relief (now financial remedy) proceedings. In the Court of Appeal the President thought he may well be right, although Thorpe LJ had his doubts. Since then the judges have skirted around the issue: see, for example, Rapisarda v Colladon [2014] EWFC 1406 at [31] to [35] where the President left open the question whether the 1926 Act applied to financial remedy proceedings. He described this uncertainty as a ‘truly a disturbing state of affairs’. He suggested that the 1926 Act ought to be repealed. With respect, I do not agree. The Act recognises and protects the private nature of divorce proceedings. It was amended by section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (as noted above); by section 66(1) of, and paragraph 2 of Schedule 8 to, the Family Law Act 1996; by section 280(2) and (3) of, and paragraph 7 of Schedule 26 to, the Criminal Justice Act 2003; and by section 261(1) of, and paragraph 8(1) and (2) of Schedule 27 to, the Civil Partnership Act 2004, and on each occasion Parliament must be taken to have endorsed its policy.

This passage, §[11], may be said to be the central passage of this part of Mostyn J’s view, yet in truth, it descends almost into farce:

  • ‘Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private’ – no it hasn’t (said in tones of Monty Python’s Flying Circus). Family Procedure Rules Committee has made rules, supposedly under powers delegated by Courts Act 2003 ss 75 and 76. The rules are ‘made’ by Parliament but subject only to the negative resolution procedure.

 

  • Of Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565, in the Court of Appeal: the case held precisely the opposite of what Mostyn J seems to be saying. In my ‘Open justice: the common law and exceptions to the principle: Part 1: Open justice and the common law’[2015] Family Law (forthcoming in October 2015) I explain this as follows:

The open court question and ‘private’ were considered in Allan v Clibbery  under Family Proceedings Rules 1991 (see eg paras [50] and [124]) but ‘private’ is not used in the same way in the later FPR 2010, r 27.10 as it was in that case. FPR 2010, r 27.10(2) says: ‘(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present’. In Allan v Clibbery, Dame Elizabeth defines ‘private’ as to exclude the public but not to have ‘the consequence of a ban on later publication’ (para [17]). Having considered the various applicable words – ‘private’, ‘chambers’, ‘in camera’ – she concluded:

‘[19] … I am driven to recall Humpty Dumpty: “When I use a word ‑ it means just what I choose it to mean ‑ neither more nor less.”

‘[20] I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

Originally Mr Allan had been granted an injunction restraining Miss Clibbery from publishing via the Daily Mirror. That was discharged by Munby J, but retained pending appeal. The President, with whom the other two LJJ agreed in her conclusion, discharged the injunction:

[83] In the present appeal, the Court has no information at all about the evidence which was adduced at the hearing in the county court, other than that reported in the newspapers. There is a blanket objection by the appellant to publication, based on the general premise that the case was heard in chambers and consequently must remain secret. On the information available to this Court and to Munby J. it was an issue of jurisdiction…. This appeal has to be decided on what the Court knows. Applying the principles which I have set out above, I can see no ground upon which, on the present facts, there cannot be publication of the proceedings. Although I consider, for the reasons set out above that he has expressed his general propositions too widely, I agree with the conclusions of Munby J. on the facts of the appeal

 

  • In my judgment – Mostyn J was not giving a judgment. His words are merely another comment from another lawyer; and on this evidence one with a shakey grasp of his subject.

 

  • Judicial Proceedings (Regulation of Reports) Act 1926 – this, I fear, is sophistry. The 1926 Act deals with publication, not with attendance at court, just as does Administration of Justice Act 1960 s 12(1). Mostyn J was dealing with exclusion from court, which is not the 1926 Act’s concern

Categorisation of ancillary relief proceedings

The categorisation issue is dealt with by Mostyn J thus:

[12] These considerations point powerfully to the categorisation of ancillary relief proceedings as private business entitling to the parties to anonymity as well as to preservation of the confidentiality of their financial affairs. Even if the rules provided for ancillary relief proceedings to be heard in public the parties would, in my judgment, be entitled to anonymity and preservation of the confidentiality of their financial affairs.

Mostyn J concluded the opposite in family proceedings under CPR 1998 (ie Trusts of Land and Appointment of Trustees Act 1996 proceedings:  ). Here he correctly cited CPR 1998 r 39.2 which provides as follows:

39.2 General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, may be in private if –

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

(b) it involves matters relating to national security;

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

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

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

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

(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

This may well represent a codification (in Lord Diplock’s words) of the common law. If so it applies to family proceedings (and on a principled basis Mostyn J could simply have said – after a proper evaluation of Human Rights Act 1998 s 12 (rights of the press) – that r 39.2(3)(c) applied).

FPR 2010 rr 27.10 and 27.11 on the evidence of r 39.2 and the common law, and on the basis of what the Court of Appeal held in Allan v Clibbery, are ultra vires the rule-makers.

Conclusion

Not allowing himself to be burdened by an application of the common law, or of Supreme Court authority which contradicted him, said Mostyn J in conclusion:

[17] In this case (the details of which are unremarkable and which are briefly discussed below) I was entirely satisfied that the general rule of anonymity and privacy should be respected and I therefore made the orders referred to above. The order itself is attached to this judgment at Annex A…. [and see his summary in his §[2] above].

David Burrows

22 September 2015

CLARITY FIRST: DEAR TRANSPARENCY PROJECT…

Clarity first

Dear Transparency Project (http://www.transparencyproject.org.uk/)

I admire what you aim to do; though, as you know, I think your title – ‘transparency’ – is a euphemism. Like the President of the Family Division I think you look through the family law procedural telescope from the wrong end (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/) and think that, because it is family proceedings they must be held in private (see discussion of the illegality of Family Procedure Rules 2010 (‘FPR 2010’) r 27.10(1) (below)).

All family courts, like any court in England, in law must be open, subject to certain well-known exceptions (the most obvious being children law, which – I entirely understand – takes up a significant proportion of the work of family courts). Privacy is the exception, and must be justified. This has been explained time and again by the judges, most recently in eg A v British Broadcasting Corporation [2014] UKSC 25. Family lawyers (backed up, to their shame, by their failure to challenge eg FPR 2010 r 27.10) seem to think they are immune from the rule of the common law.

The modern view amongst family lawyers is, entirely correctly, that there should be ‘transparency’. Courts must be open. The press and public must be allowed in – the open justice principle (OJP) – save in the very small number of exceptions identified in Civil Procedure Rules 1998 r 39.2(3) and explained in such cases as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 through to A v British Broadcasting Corporation [2014] UKSC 25, and any number of high authorities before, since and in between. The OJP rules: Kennedy v The Charity Commission [2014] UKSC 20. And most of these exceptions are in the range of family proceedings (though the recent case in which the Court of Appeal explained the rules concerned a child in civil court proceedings: JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/).

Time to clean up the kitchen

But first, family lawyers, would it not be best if we look around at the kitchen into which the press and public are being so earnestly invited. I enter this caution, not because I do not agree with the OJP, subject to the important exceptions referred to in the cases above. I suggest caution because I fear that the public may be shocked by the grease and grubby black bugs it finds hidden away in the family court kitchen. Its procedural larders hide a variety of illegality and lack of clarity grimes over many parts of its stone-flagged floors.

If I ruled the family law world I’d want to be seen to be sorting out these failings in the family law system as I opened it up – according to what I understood to be the law – to the press and public. I would want to see, not that the substantive law on which it is based is changed – that is a law reform project for another day; but to see that its procedure and administration was lawful and expressed in clear terms.

Illegality and unlawfulness

I use ‘illegality’ in the sense it occurs in administrative law. Lord Diplock in House of Lords characterised it as one of the ‘grounds upon which administrative action is subject to control by judicial review’, that is the foundations of testing the vires (powers of administrators) of public bodies (Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 [1985] AC 374):

By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By ‘clarity’ I mean – er – ‘clarity’ (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/); or, more especially, that a law text is capable of being understood by the averagely intelligent layperson (‘AILP’). I do not mean that a text is reduced, like Orwell’s Newspeak, to its lowest common denominator. I trust most readers to be able to read a dictionary. An easy example of this is the change from garnishee to ‘third party debt order’.[1] Both start as meaningless, I suspect, to most lay readers, but I bet that most dictionaries will have ‘garnishee’ and a definition; but not a definition of ‘third party debt orders’. Being a composite term, it is likely that TPDOs will be hard to define from most dictionaries.

Clarity in a text does not mean that a reader should be patronised. It is a matter of good manners and common sense; and for lawyers it means respect for the rule of law, and of lawfulness. Lack of clarity is part of the lawlessness of family law procedure, so I will take ‘clarity’ first as a general subject, and then return to other aspects of illegality.

Clarity

The FPR 2010 rule-makers (the Family Procedure Rules Committee (FPRC)) derive their powers from Courts Act 2003 ss 75 and 76. It has no powers outside those provided to it by ss 75 and 76. Section 75(5) requires FPRC to exercise its powers to make rules –

(5) … 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.

This is a highly subjective test; but to approach an understanding of it, it becomes necessary to define the AILP. Have FPRC done that? I doubt it. It is a test family lawyers must undertake soon. Till then, take for example, the proposed amendment as to FPR 2010 (intended as Part 3A). These amendments are intended to provide for the participation in family proceedings of children and ‘vulnerable witnesses’ (and see eg  http://www.transparencyproject.org.uk/guest-post-by-david-burrows-vulnerable-individuals-and-children-in-family-proceedings/ and http://www.familylaw.co.uk/news_and_comment/draft-rules-for-vulnerable-persons-in-family-proceedings#.VdDG8_mqqko). I defy most readers to understand the draft. Even the term ‘vulnerable’ is not defined; and some of the language is needlessly ponderous.

And do the rule-makers seriously expect the subjects of the draft – ‘vulnerable’ individuals and older children in family proceedings – to understand them? If they do, I fear they have failed my common sense and good manners test.

To make sense of s 75(5) an imaginary reader must be defined. Any text which is not regarded as ‘simple’ to him or her is unlawful: that is the statutory criterion. It is the law. It is not a sort of voluntary extra for FPRC to have in mind or not, according to the prevailing mood of the committee membership.

The importance of a clarity test, in more abstract terms, was explained by Lord Bingham as the first rule of his ‘Rule of law’ (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): namely that –

… the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

That was in pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 days. I wonder if Lord Bingham’s assumption that legal advice should always be available is tenable today? If so the need for clarity only becomes the more pressing still.

I doubt that much of family law procedural law is ‘simple’, ‘simply expressed’ (s 75(5)) or ‘intelligible and clear’ (in Lord Bingham’s terms). If that is the case then all provisions which are not ‘clear’ are outside the law as set down in s 75(5). Each of those not-‘simple’ rules are a cockroach in the family law kitchen into which the public is being welcomed. Cock-roaches should not be in any kitchen, whether or not it is open to the public.

Unlawfulness

Let’s assume, for now, that the rules are all set down in clear language. Even then, I believe, there are a number which are unlawful.

The easiest to explain is that on which the Transparency Project is based, namely FPR 2010 r 27.10. The majority of family lawyers seem to accept that r 27.10 somehow represents the law. Under the heading ‘Hearings in private’ the rule starts: ‘(1) Proceedings to which these rules apply [ie the vast majority of family proceedings in family courts] will be held in private, except…’; and then two exceptions are set out: that the court otherwise orders, or that another ‘enactment’ (in law that means statutes, rules, regulations and practice directions) ‘provides otherwise’.

Only eight years before FPR 2010 came into effect the Court of Appeal in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 took a lot of trouble to explain why proceedings under Family Law Act 1996 Part 4 (ie ‘family proceedings’ in terms of r 27.10) were public, certainly to the extent of release to the press of documents arising in them. For family lawyers rules on this subject are governed by the common law (best found as codified in Civil Procedure Rules 1998 r 31.21).

It is basic law that a rule, like r 27.10, cannot override the law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). The law is (for family lawyers) still the common law and as explained in Allan v Clibbery (above). Rule 27.10(1) cannot reverse the Court of Appeal decision. It is blatantly outside the law, yet it remains part of the rules made by FPRC.

FPR 2010 rr 9.14(4) and 9.16(1) (no disclosure save by Form E or as directed by the court) are so obviously unlawful in the light of MCA 1973 s 25(1) and (2) as explained by the House of Lords Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813, that no one takes any notice of the two provisions. They should not be there; and that they are ignored is not a good advertisement for rule-making, and another cockroach in the kitchen.

A letter written by one spouse (or their lawyer) to the other in an attempt to settle a case (normally confidential as between the two of them under without prejudice rule immunity (WPRI); and known as a Calderbank letter, after a Court of Appeal case) can be shown to the court when it comes to costs. The aim is to show reasonable the spouse who sent the letter has been in his/her attempts to settle a case. FPR 2010 r 28.3(8) seeks to reverse this process and to make it unlawful. This may breach principles of public policy – can a rule change ‘public policy’: I only ask? – as set out by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. That case said WPRI was ‘founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish’. The case of Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586 explains how this works in the case of costs. Rule 28.3(8) is of dubious legality. No family lawyer, as far as I know, has challenged that legality (eg under principles set out in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143).

Of cockroaches and grease in the family law kitchen

So, my friends, before too much fuss about letting the press and public in is made, it would surely be worth trying to clean up the procedural law kitchen. Illegality cockroaches and lack-of-simplicity grease must go. I would make clear and fully intelligible to the AILP the texts – rules and practice directions – on which family law procedure is based (I leave statute law for now). In doing so I would have Lord Bingham in mind and keep a careful eye on Courts Act 2003 s 75(5).

In doing that, I would make certain that every rule in FPR 2010 was in accordance with the law (statute and common law). Procedure serves the law. It is therefore necessary first to define the law and then to ensure that procedure follows it. It is Parliament and, failing that, the judges, who together make the law; not (as Dicey explained) civil servants and administrators (such as FPRC).

[1] See ‘Does a bell toll for garnishee’ [2002] Family Law David Burrows

A SIMPLE LAW FOR PRIVACY IN CHILDREN CASES

Where open justice is trumped by children privacy

JXMX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 should be required reading for every court dealing with children proceedings; and many other forms of family proceedings as well. In 36 unhurried paragraphs it explains the common law on when the open justice principle can be overridden (Roberts J took 177 paragraphs to do the same thing in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), Roberts J). The same common law and (as applicable) statute law which applies to all civil proceedings (though family proceedings rule-makers have introduced rules which impede the simple common law principles in a way which gives every impression of illegality: FPR 2010 r 29.10 and 29.11; and see https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ – my response to Sir James Munby P’s July consultation paper on what he calls ‘transparency’).

The background is that JXMX sustained severe birth injuries and sued the Trust responsible. She will always be a protected party, with people looking after her and her interests. Her claim was settled for a significant sum. The settlement went before Tugendhat J for approval, a hearing which is in open court. Her advisers asked for an anonymity order; and, for example, her mother had said that she was concerned that people might start looking to her for payments if the large sum awarded to her daughter was reported in the press. She was concerned about her and her daughter’s loss of privacy.

The judge was unconvinced. All of her daughter’s affairs would be looked after by a professional Deputy, and, he said, the mother’s fears were not objectively well founded.

The appeal

The Court of Appeal, in a judgment of the court, set out clear statements of principle in favour of open justice from cases such as Scott v Scott [1913] AC 417, and A v British Broadcasting Corporation [2014] UKSC 25. They referred to the summary of the common law position (now codified, largely, in CPR 1998 r 39.2). Children law, said Lord Reed in A, recognised that there may be many different cases in which the court must have regard to the need to do justice in a wider sense than merely reaching a just determination of the issue between the immediate parties. So, said the Court of Appeal, interests contrary to open justice may arise:

[14] Proceedings involving children and vulnerable adults will often call for a measure of privacy, not necessarily because of the inherent nature of the issues to which they give rise, but because such persons may suffer a distinct injustice if they are exposed to the publicity that may be generated if the proceedings are held in public. Moreover, a claimant who is, or will in due course grow up to be, a protected party may need protection from those who would seek to gain access to the funds that are intended to provide compensation for the injuries in respect of which they were awarded.

Family proceedings

One can entirely understand that those involved in any proceedings on family breakdown would want privacy; but why should they start (as FPR 2010 r 27.10 suggests they are entitled to do) in any different position than any other litigant Or as Jeremy Bentham would say, why should family courts judges be any less on trial than any other judge?

The correct approach on privacy, as ever, is to put the law first; and the law here is the common law ‘open justice principle’ (per Toulson LJ in Guardian Newspapers above; or as explained in MX); unless that openness should be restricted by order of the court (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593) or by statutory intervention – eg by contempt proceedings. As Lord Scarman explained in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

No one shall be punished for publishing….information unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally. Parliament clearly had the general rule in mind when in 1960 it enacted that even the publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court save in specified exceptional cases: section 12 (1) of the Administration of Justice Act 1960….

The common law starts from the premise that anyone subject to it can do what they want, unless lawfully prohibited (hence the negative – ‘thou shalt not’ – approach of much parliamentary drafting (eg Administration of Justice Act 1960 s 12(1)). The default position in any civil proceedings is open justice. Exceptions – and there are sure to be many in family proceedings; and for protected parties generally – must be statutorily provided for or ordered by the court on a principled basis. That does not include in delegated legislation, especially legislation for which there are no obvious vires.

Many of the applicable ‘exceptions’ are summarised in CPR 1998 rr 31.22 and 39.2. Adopt those rules into FPR 2010 and – in procedural law, at least – the problem would be solved.

And there it is: a family lawyer (me) who, yet again, protests too much on this subject; for I know Sir James Munby P is still tying himself in knots over it. The law is very simple; and it is clearly as can be set out in JXMX v Dartford for any children case (subject to the provisions also of Administration of Justice Act 1960 s 12).

MUNBY: LISTEN TO THE INDIVIDUALS AFFECTED

What do the young people think?

It is time to take stock in the ‘transparency’ debate and to review a couple of eloquent comments in [2014] Family Law: a Comment from Peggy Ray (a child law solicitor) at 1655 and an article by Dr Julia Brophy, a ‘Principal Researcher in Family Justice’ (sic a title proposed by Family Law).

Peggy Ray sets the scene: ‘Would you be happy that the problems your family may be experiencing at any particular time are shared with your local paper, even without naming you?’ she asks rhetorically. She explains why – at the very least – there must be ‘extensive consultation with the most vulnerable citizens involved’ – namely the young people whose interests are central; followed by a full assessment of risks to them. And Julia Brophy then elaborates Peggy’s themes from her research.

Almost every line of these two documents should say to Sir James Munby P that his cosying up to the press must stop. Young people do not trust journalists (as most of us do not: me, I’m a jurist, not a journalist!). Many journos don’t let facts interfere with a good story; or their own opinion Brophy’s young people note (p 1689). Local communities (whether large and rural; or urban and numerous) have a way of undermining the most effective attempts at anonymity (p 1687). Family court judges (who do not probably spend much time on Twitter or Facebook) can have scant imagination of its power to communicate; and then a child already vulnerable, has the potential to become vulnerable to paedophile grooming. And so the family court – unwittingly – becomes a party in one way or another (read Brophy) to other forms of abuse.

And, of Sir James’s current wheeze ‘Family Transparency: the next steps’: http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ : the plan is to extend to family courts the common law rule about release of court documents to journalists (per R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343: the ‘open justice principle’). What does Munby imagine will that idea do to encourage young people to be frank with medical or other opinion witnesses (p 1691)?

Open court, a free press and protected individuals

Bentham was adamant that judges should sit in open court, so that they would be judged themselves. A free press was the means for that. In theory, Dr Bentham, yes. (As I write, a demonstration related to Charlie Hebdo, heavily attended by cynical politicians, takes place not two miles from where I sit. It is in support of freedom of a press these politicians would muzzle, or have their spies hack into). Meanwhile that free press shows itself at its most debased from the pen – a ‘pen mightier than the sword’, we must observe on Charlie Hebdo demo day, today – of an experienced (though fact averse, it seems) Christopher Booker (per Pink Tape: http://www.pinktape.co.uk/cases/i-am-calm/ ).

I return to the families in issue here. They are concerned not with high ideals of press freedom and open justice. They are concerned – as we should be – with the privacy of separate (and often ‘vulnerable’) individuals.

President: stop and think of the protected individuals concerned

Each case where the welfare of a child is in question, involves an individual family. Each individual child, his/her privacy and future privacy (European Convention 1950 Art 8, if you like) should be in issue in each separate case. I prefer to call them ‘protected individuals’ (‘vulnerable’ though many may be, also): ie deserving of protection. Each person and their case demands that different questions be answered; and that they and their welfare be protected.

One of those questions is: WHY? Why should my family issues and the possibility of my name and detail of my life be out there? What is the justification for that: whether in law and legal dogma, or in my personal case?

Sir James Munby P must bear in mind each protected individual affected by his posturing to the press. He must think very carefully about what the families individually, and the ‘vulnerable’ individuals themselves, are saying, before he goes any further. And he must remember what young people say about the real transparency of families, for anyone who reads about their family on Bailii or in Family Law Reports; and he should recall what the likes of Booker and the Daily Telegraph do with family court ‘facts’.

Finally, as a lawyer I ask Sir James, in any ‘family law reform’ you do propose, to keep to the law, not to putting out arbitrary and unlawful guidances and directions; but that plea is for another day….