In July 2017 Fam Law 000 I wrote an article on the approach the family court was taking to issues of publicity in financial remedy proceedings. This followed the keynote address by Mr Justice Sir Michael Keehan at Resolution’s national conference. Keehan J reflected there on the ding dong merrily in the High Court between Mr Justice Mostyn and Mr Justice Holman in relation to how publicity should be dealt with in financial remedy proceedings. At the time of the address an appeal to the Court of Appeal of a decision by Moor J ([2016] EWHC 2073 (Fam) concerning publicity was eagerly awaited. That appeal decision is now at hand with the principal judgment being given by Lord Justice McFarlane in R v R and Times Newspapers Ltd [2017 EWCA Civ 1588]. The judgment, handed down on 17 October 2017, followed a hearing on 25 July 2017 and was expected to produce valuable commentary on the opposing approaches by Mostyn J and Holman J in their various reported decisions. Family lawyers eagerly awaited finding which approach the Court of Appeal favoured.

Was it to be the approach of Mostyn J to the relevant rules concerning publicity set out in FPR r 27.10 which states that proceedings “will be held in private except (a) where these rules or any other enactment provide otherwise; or (b) subject to any enactment, where the court directs otherwise. In the DL v SL (Financial remedy proceedings: privacy) [2015] EWHC2621 (FAM) Mostyn J considered the principle of open justice and the hearing of financial remedy cases in public. He concluded that, unless there are exceptions, these cases should be heard in private and not reported. He argued that FPR r 27.10 specifically provided that the proceedings shall be heard in private and the media may attend the hearing pursuant to FPR r 27.11 but that does not make the hearing public. Further that the family proceedings process involves the extraction of highly personal and private information and that in almost every case where anonymisation is sought, the right to privacy would trump the right to unfettered freedom of expression. Further that financial remedy proceedings are “quintessentially private business and therefore protected by the anomality principle”. Mostyn J found support from Robert J in Cooper-Hohn v Hohn [2014] EWHC2314 (Fam). Here the judge was concerned that some litigants might be less than open in the witness box if they found their answers would be on the “nations breakfast tables the following morning”.

However, the opposing view was trumpeted loud and clear by Holman J in Luckwell v Limata [2014] EWHC502. His approach was:

“In my view the effect of rule 27.10(1) read with sub paragraph (b) is as follows. It provides a starting point or a default position that in the absence of the court directing otherwise proceedings for financial remedy after divorce will be held in private “duly accredited representatives of news gatherer reporting organisations”. Normally being permitted to be present pursuant to rule 27.11 but not ordinary members of the public. In my view rule 27.10 does not contain any presumption of financial remedy proceedings should be heard in private – it is no more than a starting point – a question of whether a given case should or should not be is entirely the discretion of the court.”

However, the Court of Appeal has disappointed us if, with respect, I may say so. The appeal decision focused on relatively narrow points and there was no broader discussion of the manner in which first instance decisions should be reported in terms of privacy.

The appeal related to a decision by Moor J as long ago as 20 July 2016 where he made a short judgment at the end of High Court matrimonial proceedings concerning a married couple who were divorced in Russia in 2013 but the wife pursued an application under Part III of the Matrimonial Causes Act 1973 and provision under the Children Act 1989. Moor J made fairly extensive reporting restrictions in respect of the original judgment but the husband sought to have these further extended. The judgment of the Court of Appeal is limited in detail of the circumstances because they decided to uphold the original reporting restrictions. The closed judgment, however, sets out the full reasoning. The husband argued a number of points including that Art 2 of ECHR which protects the right to life was engaged. The Court of Appeal found that there was no basis for any inference as regards Art 2 in respect of the original judgment.

McFarlane LJ then went on to consider Art 10 of ECHR. The husband argued that Moor J had erred in his approach to the balancing exercise. It was accepted law that s 97 of the Children Act 1989 prohibits publication of any material which is likely to identify any child involved in proceedings under that act. However, that restriction is only available if the proceedings are still live. The Children Act proceedings had come to an end some time ago and all Children Act orders had been discharged. One of the points of appeal was the judge failed to give adequate reasons for dismissing Arts 8 and 10 submissions but the Court of Appeal said that that duty fell upon the representatives to raise with the judge and ask him to amplify and clarify his reasons. No such request was made. The Court of Appeal endorsed their previous approach in the case of Norman v Norman [2017] EWCA Civ 49 which was published after Moor J gave his judgment. This reinforced the position that anonymity in appeal cases could not be guaranteed and was different to the approach in first instant decisions. The principle of open justice in appeals carried great weight.

The Court of Appeal in R v R considered in para 26 that:

“… it is plain that, in reliance upon the general approach of the Court of Appeal which was well known prior to Norman, Moor J, with admirable prescience gave priority to the importance of the principle of open justice with respect to the Court of Appeal judgment in a manner which was, as it turned out, entirely in line with the approached endorsed in Norman. Mr Sherborne does not submit that Moor J’s analysis was incompatible with that which was now required by Norman; his case is simply that on the facts that present case, it is not possible to afford priority to open justice to the court of appeal process whilst at the same time, adhering to the judge’s order.”

In this case the Court of Appeal considered that this was not a case sustainable if proper account were taken of the pre-judgment submissions. Here Moor J had properly balanced the issues in favour of publication with respect to the Court of Appeal proceedings and he had achieved an overall outcome which rightly looked to cause minimum impairment of a principle of open justice with respect to those proceedings. The Appeal Court therefore endorsed Moor J’s approach which appears to have allowed some description of personal details but far less than would have been allowed by Holman J. The husband sought for further restrictions to be imposed on the brief details that were given but the Court of Appeal did not agree with this approach. The fact that this appeal has taken more than a year to be published since Moor J’s original decision may well have benefitted the appellant in any event.