The issue of privacy in the family courts has once against raised its head in Mostyn J’s recent case of Appleton and Gallagher v News Group Newspapers Ltd and The Press Association
In
Appleton and Gallagher v News Group Newspapers Ltd and The Press Association [2015] EWHC 2689 (Fam), Mostyn J stated that 'To say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement.' But what is the supposed position of the law?
The rules
Rule 27.10 of the
Family Procedure Rules 2010 states that cases are held in private. It used to be the position that only parties and their representatives could attend hearings in the family court . However, since April 2009, the press are able to attend family hearings under rule 27.11. That said, rule 29.12 of the rules prohibits reporters from looking at any documents produced at hearings.
The president’s guidance
In January 2014, the president, Munby J, clearly perceived there to be a lack of clarity in this area as he issued
Practice Guidance (Transparency in the Family Courts: Publication of Judgments). In this he stated that there should be greater transparency in order to achieve a more consistent approach, improve the management of cases and raise a greater public awareness of how the family courts work.
However, he expressly stated that the guidance does not override the court's discretion in deciding to regulate the publication of a judgment. Paragraph 19 of the guidance states:
'In deciding whether and if so when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.'
This allowance for flexibility, as is common in family law, has led to a divergence in approaches in the High Court.
The approach in recent case law
Pro privacy
In
Appleton and Gallagher v News Group Newspapers Ltd and The Press Association, Mostyn J clarified his understanding of what a journalist is and is not able to report. He ordered that journalists are not allowed to publish anything that
'identifies by name or location any person other than the advocates or the solicitors instructing them…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.'
Prior to this, Mostyn J made similar arguments in
DL v SL [2015] EWHC 2621 (Fam. He stated that 'ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle'.
Mostyn J has identified a number of reasons why he considers that this is the position:
(a) Parliament in FPR 27.10 specifically legislated that these proceedings should be held in private. This was not amended with the 27.11 press rule chance in 2009. If Parliament had intended for the press to be able to report on anything, then rule 27.10 would have been amended. Mostyn considers that the rule change was intended to allow the world to understand children cases, and especially public cases, rather than financial remedy proceedings. He states that this is clear from the
White Paper Family Justice in View (Cm 7502). In passing, this seems still to be a concern as Bristol University has recently published research that looks at how feedback on the work of judges could improve the way they handle cases about children’s care;
(b) Publishing any information heard in private financial remedy proceedings would be a breach of the implied undertaking as to confidentiality, and would be contempt of court;
(c) Financial remedy proceedings involve "highly personal and private information under compulsion". This can be contrasted to civil cases, where the disclosure obligations are more specific and are arguably less personally invasive;
(d) Article 14 of the1996 International Covenant on Civil and Political Rights (ratified by the UK in 1976) sets out that the press can be excluded from all or part of the trial when the interest of the private lives of the parties requires, and provides that judgment need not be in public in cases involving matrimonial disputes;
(e) The Judicial Proceedings (Regulation of Reports) Act 1926 prevents publication of certain proceedings, and Mostyn argues this covers financial remedy proceedings and remains good law.
