He made a similar point nearly seven years later: “On any view, the law regarding the openness of a financial remedy hearing which is not wholly or mainly about child maintenance is regrettably unclear and contradictory”: Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52, per Mostyn J at [80] (13 June 2022).
In other words, some things never change.
The conventional position
The conventional position in relation to the reporting of financial remedy proceedings in the family courts may be summarised as follows:
- Hearings take place in private but accredited journalists and legal bloggers are entitled to attend unless the court orders otherwise: FPR 27.10, 27.11.
- Importantly, the 2009 rule change which permitted accredited journalists to attend family cases heard in private “was not intended to abrogate” the “core privacy provided by the implied undertaking and the hearing of the proceedings in chambers…The press [before being allowed to report] have to justify why the core privacy maintained and endorsed by Parliament should be breached…the privacy side of the scales starts with heavy weights on it”: see Appleton v Gallagher [2015] EWHC 2689 (Fam); [2016] EMLR 3 at [12] & [16]. In other words, the attendance of accredited journalists did not turn such hearings into public, open court, hearings; they remained private. “The right [of accredited journalists and legal bloggers] to attend hearings does not…grant the right to report on proceedings or publish details of proceedings”: President’s Guidance as to Reporting in the Family Courts, 3 October 2019.
- If the proceedings are conducted in private and “relate wholly or mainly to the maintenance or upbringing of” a child, the general effect of s.12, AJA 1960 is that it is a contempt of court to publish information relating to the proceedings. This rule does not apply to “the publication of the text or a summary of the whole or part of an order made by a court sitting in private” unless the court makes an order expressly prohibiting such publication: AJA 1960, s.12(2). Note also that the stringency of this prohibition is relaxed in certain circumstances by the provisions of FPR 12.73-12.75 & PD12G and FPR 14.14 & PD14E.
- Also, s.97(2), CA 1989 makes it a criminal offence for anyone to publish any material which is likely to identify any child as being involved in proceedings in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised with respect to that or any other child, or their address or school, unless the court has made an order disapplying the effect of s.97(2), as to which jurisdiction see Griffiths v Tickle [2021] EWCA Civ 1882; [2022] EMLR 11.
- But if the financial remedy proceedings in question are not concerned with the maintenance of children, then none of this applies.
- Nevertheless, there are other obstacles in the way of the press reporting the details of financial remedy proceedings which apply whether children are involved or not.
- First and foremost, in Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261 the Court of Appeal made clear that parties to financial remedy proceedings owe an undertaking to the court not to use information disclosed by the other party under compulsion for any purpose other than the proper purposes of the proceedings, and it is a breach of that undertaking and a contempt of court for a party to publish such information. Accredited journalists in attendance at financial remedy hearings held in private are collaterally bound by that undertaking: Appleton v Gallagher, above, at [10]. Since a great deal of information is disclosed in financial remedy proceedings under compulsion as opposed to voluntarily (see e.g., classically, in Form E), this makes reporting of anything other than the court’s public judgments hazardous and thus unattractive. While in ordinary civil proceedings, the ‘express undertaking’ in CPR 31.22 ceases to have effect when information in question is referred to at a “hearing which has been held in public”, conventionally, there is no question of that happening at a financial remedy hearing in the family court because they are heard in private: see (2) above.
- Secondly, s.1 of the Judicial Proceedings (Regulation of Reports) Act 1926 may apply to financial remedy proceedings held in private. Judges have expressed different views on the point. If it does apply, except where the court has made an order providing otherwise, it is a criminal offence for anyone to publish any information about the proceedings other than: the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences and counter-charges in support of which evidence has been given; submissions on any point of law arising in the course of the proceedings and the decision of the court thereon; and the judgment of the court and any observations made by the judge in giving judgment.
- Thirdly, the court has historically adopted the general practice of anonymising in its public judgments the parties to financial remedy proceedings: Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315; [2011] 1 FLR 1427 at [76] & [79].
The effect of all of this is that the details of financial remedy proceedings are not usually reported in the press. When judges hand down public judgments in such cases, they tend to be anonymised. By and large, the media are not interested in anonymised judgments. Further, the press rarely make applications to permit more extensive reporting of such proceedings including of names unless the parties are high profile and/or large sums of money are involved. As Thorpe LJ wryly observed in Lykiardopulo at [32]: “Public interest has never been in the administration of justice in this special field. It is easier to identify public curiosity concerning the lives and fortunes of either the famous or the rich”.
As an aside, however, it is important to note that, in the absence of a specific order prohibiting publication of particular information, it is not a contempt of court to publish the details of hearings in private where the proceedings do not concern child maintenance, simply by virtue of the fact that the hearing is in private. This is so whether the hearing is proceeding in the family courts, or any other civil court, even where the purpose of the court going into private is to protect privacy or confidentiality.
It is especially important to have this observation in mind in proceedings held in private (not relating to children) in the family courts where the media and legal bloggers have a right to attend – a situation which does not arise in the QBD, the Ch Div or any other civil court, where proceedings are either in public with anyone admitted or in private with everyone excluded. Subject only to the points made in (7)-(9) above, unless a Reporting Restriction Order (“RRO”) is put in place to prohibit the publication of specific information, the press who are there will be at liberty to report what they have seen and heard.
So far as concerns the procedure for applying for a RRO, see FPR PD 12I, which provides that such applications must be heard in the High Court. The court’s approach is to apply the familiar balancing exercise described in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593; see, e.g., Re Al Maktoum (Reporting Restrictions Order) [2020] EWHC 702 (Fam); [2020] EMLR 17.
The winds of change
On 29 October 2021, Sir Andrew McFarlane, the President of the Family Division, published a Report entitled “Confidence and Confidentiality: Transparency in the Family Courts”. This followed the appointment in 2019 of a Transparency Review Panel which looked into the matter, received evidence and reported back to the President.
The Report’s “overall conclusion” is set out at §35:
“…the time has come for accredited media representatives and legal bloggers to be able not only to attend and observe Family Court hearings but also to report publicly on what they see and hear. Reporting must be subject to very clear rules to maintain both the anonymity of children and family members who are before the court, and confidentiality with respect to intimate details of their private lives. Openness and confidentiality are not irreconcilable, and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality”.
With the objective of greater “openness” in mind, the President makes a series of specific recommendations. If implemented, they are likely to have a revolutionary impact on established practices in relation to publicity for and the reporting of the day-to-day work and judgments of the family courts. This is deliberate. As the President says at §22 in his Report: “I have…reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects”. In substance, except in respect of information about children – who should generally retain the benefit of anonymity (see §§33, 39, 46ff) – and information consisting of details of the abuse of children (§50), the general presumption of privacy will be reversed, and the guiding principle will be, as in other courts, open justice. Derogations from open justice will need to be justified as necessary for the due administration of justice, as elsewhere.
Some of the more eye-catching recommendations are as follows:
- Parliament should urgently consider repealing s.12, AJA 1960 (“…I have concluded that s 12 has the contrary effect of undermining confidence in the administration of Family justice to a marked degree”): §38. If this were to be done, the position described in the closing paragraphs of Section I above would govern family cases involving children. Absent an express order prohibiting publication, it would no longer be a contempt of court to publish the details of court hearings heard in private concerning children.
- Family courts should not be thrown open to the public at large: §36. But in respect of accredited journalists and legal bloggers who attend hearings, new rules ought to be made whereby “the presumption will be reversed to one that allows reporting”, subject to any express order of the court: §39.
- Accredited journalists and legal bloggers who attend hearings should be allowed to have copies of the parties’ position statements and witness statements, subject to any express order of the court: §43.
- Accredited journalists and legal bloggers should also be added to the list of those to whom a party may communicate information relating to child-related proceedings under FPR 12.75, PD12G, 14.14 & PD14E, although subject to a prohibition on publication: §45.
- Court lists should be made available in advance of hearings to accredited journalists and legal bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate: §60.
A Transparency Implementation Group has been established to help the President to put these recommendations into effect after a further short round of consultation: §§63-64.
And what of financial remedy proceedings specifically? At §54 of the Report, the President said this:
“Much of the review process, and of this document, has been concerned with children cases. Similar, but in some respects different, considerations apply to proceedings to resolve financial issues between adult parties following a divorce, breakdown of a civil partnership or other separation. Alongside my review, work has been undertaken by Mr Justice Mostyn and His Honour Judge Hess, as the lead judges of the Financial Remedies Court (“FRC”), to enhance transparency and public confidence in financial remedy proceedings. I am very grateful to Mostyn J and HHJ Hess who have developed a proposal for a ‘standard reporting permission order’ for use in FRC proceedings. The proposal, which has my support, is being launched today, alongside this review, for consultation. The consultation period is short and will close on 26th November 2021”.
It is proposed that Mostyn J and HHJ Hess’s standard Reporting Permission Order (“RPO”) should be issued as a standard step in all financial remedy cases which are not concerned with child maintenance after the filing of a Form A. The Consultation Paper that accompanies it is a somewhat curious document. In contrast to the Report of the President, it disavows any intention radically to modify the status quo, stating that its purpose is merely to “codify and clarify the existing rules” and that it does not “seek[ ] to change any existing legal standards” (§§3 & 6). But then it goes on to say at §15 that “[t]he proposed RPO…contains terms which relax the existing prohibitions”. This seems to accord with the reality of the situation, as the proposed RPO would, if implemented, bring about significant changes to the current culture and practice governing publicity and reporting in financial remedy cases, as follows:
- Accredited journalists and legal bloggers attending hearings who wished to report the proceedings would no longer have to justify why “the core privacy maintained and endorsed by Parliament should be breached” and “the privacy side of the scales” would no longer “start with heavy weights on it”, to adopt the words of Mostyn J in Appleton v Gallagher. The presumptive starting point would be that it would be lawful for such persons “to publish…anything heard or read [by him or her] concerning the proceedings” except for (i) the names or schools or photographs of any minor children of the parties, (ii) the parties’ financial information given under compulsion (“protected financial information”) save to the extent that any such information is already in the public domain, and (iii) any limitations upon the reporting of a judgment or order disposing of the proceedings imposed by the judgment or order itself.
- Furthermore, the following information would not be regarded for this purpose as “protected financial information”:
- a broad description of the types and amounts of the assets, liabilities, income, and other financial resources of the parties, without identifying the actual items, or where they are sited, or by whom they are held; and
- a broad description of the open proposals of the parties, giving only the monetary value of the proposals and without identifying actual items.
- Accredited journalists and legal bloggers attending hearings would be entitled to request from and be given by the parties copies of any filed documents which were necessary to enable him or her to comprehend the factual, evidential or legal issues in the proceedings, provided that the request was proportionate, that any documents produced were only used for the purposes of publication, and that unless the court ordered otherwise the copies were destroyed six months after the date of the order disposing of the proceedings.
- There would be liberty to the parties to apply to restrict or relax the default provisions, and similarly, liberty to any journalist or legal blogger affected by such an order to apply to vary its terms.
- The Consultation Paper indicates at §21 that “[c]ommonly, the judgment will be anonymised and the rubric may stipulate preservation of the anonymity” but the same paragraph realistically recognises that “anonymisation may be futile if there has been contemporaneous reporting of the proceedings pursuant to the terms of the proposed RPO”.
Evidently, if this Proposal were to be implemented, the reasonable expectations of persons embarking upon financial remedy proceedings in terms of the continuing privacy of their financial information and documents would be markedly different from what they can expect now in accordance with ‘the conventional position described above – though subject to what is said in Part 2 of this post.
Godwin Busuttil is a barrister at 5RB in London, specialising in media and communications cases. He is also a General Editor of Gatley on Libel and Slander (13th ed., Sweet & Maxwell, 2022) and a contributor to The Law of Privacy and the Media (Oxford University Press), which is about to go into its fourth edition.