‘Current authority’ on an undecided legal issue

Her Honour Judge Madeline Reardon provides a stirring coda to her judgment in G v S (Family Law Act 1996: Publicity) [2024] EWFC 231 (B) (6 June 2024) as follows:

“[50] The primary purpose of publishing this judgment is to promote transparency. Pursuant to the Practice Direction on the Citation of Authorities [2001] 1 WLR 1001, I intend this judgment to be citable for the limited purposes set out in paragraph 6.2(b) of that practice direction: that is, to demonstrate current authority at this level on an issue in respect of which no decision at a higher level of authority is available.”

For me it was especially stirring. I was pleased to see a circuit judge in family proceedings taking the “current authority” bull by the horns and for her to say: whatever may be the precedent rules, we circuit judges – in appropriate cases – can define or refine the law. We are entitled to be heard on law. We may even be in the “books”, of which common law is comprised? All that was before I had read the judgement as a whole. Then – I regret to say – my enthusiasm evaporated.

Citation of authorities

The Practice Direction on the Citation of Authorities (above), as relevant here, says:

“6.1 A judgment falling into one of the categories referred to in paragraph 6.2 below may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law….

6.2 Paragraph 6.1 applies to the following categories of judgment

– Applications attended by one party only

– Applications for permission to appeal

– Decisions on applications that only decide that the application is arguably

– County court cases [including circuit judge family court cases], unless…(b) cited… in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available” (underlining mine).

What is to happen if the judge in the case in question misreads the law as I think she did in G v S. There is not arbiter of these things until a higher court reviews the law and (as appropriate) reverses what the lesser judge has said.

G and S were a married couple. G, the husband, applied for a domestic abuse injunctions under Family Law Act 1996 Part 4, and S, a little later, cross-applied. They ultimately abandoned the proceedings; but G wanted to take part in a “documentary about honour-based violence” (see [29]). He applied to the case management district judge who put the application up to a circuit judge in the family court sitting in East London; and so to Judge Reardon.

The “transparency” pot (of family proceedings case law) began to bubble. And the scent of that pot reached the still active forensic nostrils of the now retired Sir Nicholas Mostyn, a retired Family Division judge. In a piece entitled Absence of Authority in the September 2024 issue of Financial Remedies Journal (FRJ),  Sir Nicholas fulminates for a variety of reasons about G v S. His fulminations are ill-judged I fear. Not least, his citation of Administration of Justice Act 1960 (AJA 1960) s 12 (set out, by him, from Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370; [1991] 2 WLR 513 (31 January 1991)) is in an unamended form. In that unamended form it is the only near complete version of s 12 in Judge Reardon’s judgment and Sir Nicholas’s article. The result is that the important additions to s 12(4) are ignored by Sir Nicholas; and Judge Reardon does not cite s 12(4) at all (see its full, as relevant here, citation below).

Two judges misunderstand the meaning of Administration of Justice Act 1960 s 12

Thus, Judge Reardon’s certification, with Sir Nicholas’s comments on it, both show that each of the judge and former judge misunderstand the meaning of, and variously misquote, AJA 1960 s 12. As relevant to family proceedings, s 12 (as amended) says:

“Publication of information relating to proceedings in private.

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor; …

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published….

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section and in particular where the publication is not so punishable by reason of being authorised by rules of court” (underlining added).

The passage underlined was added by Children Act 2004. That amendment has spawned amendment rules – applicable to all family proceedings – in Family Proceedings Rules 2010 (FPR 2010) Part 12 Ch 7 and PD12G. H wanted to publish/communicate information about his and his wife’s case. His application in the case should have been for permission accordingly under Ch 7 (which applies to all family proceedings).

‘In private’ hearings

Section 12(1) catches “proceedings before any court sitting in private”. It follows from the fact that if the proceedings are in fact heard “in private” then s 12(1) applies, as night follows day. And so, the proceedings in G v S – such as they were – were “in private”. The judge asked herself [at 34] if AJA 1960 s 12 applies. Her reply is ‘short’. She says ‘no’.

I cannot agree. A reading of the first line of s 12(1), I think, supports me. It is the affirmation of the perceived need to hold any hearing in private (eg because of national security or patent cases) where necessity, the common law or rules require. It is explained for example in Arlidge, Eady & Smith on Contempt (with supplement) 5th Ed, Sweet & Maxwell (2017) at 8-144 etseq.

Just because proceedings are heard in private does not mean necessarily that it is a contempt to “publish information from them”, save in the exceptions (“the contempt exceptions”) listed in the balance of s 12(1). These include – important from a family lawyer’s point of view – children proceedings. (This last does not include, oddly enough, Upper Tribunal appeals in child support cases (see Tribunal Procedure (Upper Tribunal) Rules 2008 r 37(1) (sed quare the meaning of r 37(2)(2ZA)(d) and its reference to “administration of justice”): Sir Nicholas may, perhaps, remember this from when he and I appeared respectively for Mrs Smith and Mr Smith in the House of Lords in Smith v Secretary of State for Work and Pensions [2006] UKHL 35, [2006] 1 WLR 2024, [2007] 1 FLR 166 and when Mrs Smith caused a national newspaper to publish a prominent photographs of the Smith children).

Permission for Family Law Act 1996 Part 4 proceedings

Back to G v S: what the judge was asking was, I think: are Family Law Act 1996 Part 4 proceedings amongst the contempt exceptions in s 12(1)? That is not the correct question, unless a court addresses the prior question: are the particular proceedings heard “in private”? If yes, then next question: are the particular exceptions included in the contempt exceptions list?

Part 4 proceedings are almost invariably in private if FPR 2010 rr 10.15 and 27.10 are followed; and they are not in the exceptions list, save where children are also concerned. They are still caught by s 12(1) because “in private”; but they are not caught by the double net represented by the s 12(1) contempt exceptions.

The final question in G v S is whether permission can be given for the husband to “speak publicly about his involvement in Part 4 proceedings” (see Judge Reardon’s [29]). That is what the case was all about.

G v S was only tangentially about Part 4 proceedings. The questions were: was any hearing “in private” (yes, or at least it would have been if ultimately heard). If so, should that privacy extend to publicity as sought by H?

Sir Nicholas Mostyn and Pickering

Meanwhile, Sir Nicholas veers off into various bye ways in not dealing with the modern law on s 12(1). One detour into Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370, [1991] 2 WLR 513 (see above). He cited the case as authority for what he called a ‘general rule’ (which he emboldens, as below):

“The general rule which the section declares is that it is not a contempt to publish information relating to proceedings in court merely because the proceedings are heard in private. But the exceptions to that rule expressed in paragraphs (a) to (d) of subsection (1) must indicate that it is, at least prima facie, a contempt to publish information relating to the proceedings in the cases indicated.”

As this post is at pains to emphasise: what Sir Nicholas says is not a contempt, as a matter of ordinary language, is not necessarily a contempt (see italicised passage above). As a matter of law the remainder of aspects are automatically a contempt unless authorised by rules (s 12(4): passage underlined).

With respect to Sir Nicholas, s 12 must be read as a whole, as amended, not in its abbreviated form as cited in 1991 by the House of Lords. And Pickering is authority that, as the ICLR headnote has it, AJA 1960 s 12(1)(b) plainly shows “that a mental health review tribunal was a court to which the law of contempt applied” in accordance with the first few words of s 12(1); but that it was not a contempt to publish certain routine details about such a hearing. No more.

High Court authority for publicity, transparency and application of s 12

This post returns to Judge Reardon’s aim (at [50)] “to demonstrate current authority at this level [of court] on an issue in respect of which no decision at a higher level of authority is available”. The judge seems not to have ben referred to it, but there is abundant authority on publicity or not for the variety of family proceedings, not referred to by either judge or former judge. Much of this is from the pen of Sir James Munby. For example, in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 Sir James reviewed publicity law. He cited in particular a case on appeal from his Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, namely Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 2 All ER 1156, [2009] 1 FLR 1378, CA (11 February 2009). In that case he cites Wall LJ as saying (at [197] in Webster): “[29]…. the system provides a remedy. It requires determined lawyers and determined parties”. Sir James continued:

“[29] …So, as I entirely agree, the role of specialist family [lawyers] is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor [ie Sir Nicholaas Wall P], is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

[30] Almost 10 years ago I said this (Re B (A Child) (Disclosure), para [103]): “… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.” I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”

A ‘miscarriage of justice’

So was G v S a “miscarriage of justice” in Sir James’s terms. Indeed, it was. Judge Reardon eloquently failed to understand the meaning of s 12(1); and then failed to consider the points raised by such varied cases on “publication” as, for example, Re J.

The fact of the proceedings being under Family Law Act 1996 Part 4 is irrelevant. Such proceedings are not within the exceptions in s 12(1); but that does not override the much more intense Re S balance (see later). HHRJ wants to promote “transparency” she says in her para 6.2(b) certificate. In the same breath she next and deliberately muzzles one of the parties. (I know I muddle up the use of “transparency”: I think in the judge’s certificate she means openness of court judgements; where H would have meant the freedom of expression to speak of his experiences.)

Clibbery v Allan

Judge Reardon cites Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 extensively. Two aspects are relevant here. First, she speaks of “considerable and divergent High Court authority on the operation of the ‘implied undertaking’ and its effect on publicity issues” (her para [25]), especially since journalists had been allowed into family courts (she says).

The judge does not say on quite what basis she finds “divergent High Court authority”. The implied undertaking is a common law remedy and is, in effect, defined by “use” of disclosed documents under CPR 1998 r 31.22 (as drafted following settlement of NCCL’s appeal to the European Court after Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). No rule maker can alter the common law with a rule change (see Dunhill below). Case law on the implied undertaking, “use of documents” and r 31.22 is relatively well settled law. The subject was considered in an authoritative way, for example, in Baroness Lawrence of Clarendon and ors v Associated Newspapers Ltd [2023] EWHC 2789 (KB), [2024] 1 WLR 3669 (10 November 2023), Nicklin J.

Judge Reardon may not have been referred to Baroness Lawrence, but Nicklin J – a highly experienced judge in this area – connotes “use” with the old law on the “implied undertaking” and cites (at his [272]) the principle authorities since the originating case of Riddick v Thames Board Mills [1977] QB 881; [1977] 3 WLR 63, CA per Lord Denning MR and on through Harman (above). These cases set out the law as now summarised in CPR 1998 r 31.22 (subsequent to a hearing use of disclosed documents), which emphatically applies to family proceedings (see eg a family case which deals with the same point as to compulsion of disclosure in family proceedings: R v K (A) [2009] EWCA Crim 1640, [2010] QB 343, [2010] 1 FLR 807).

A ‘rule change… which completely overturns the reasoning of the Court of Appeal’

Secondly, Judge Reardon’s citation of Sir Nicholas himself in earlier times is depressing. A well-known family circuit judge and a senior Family Division judge say:

[26] However, in Xanthopoulos v Rakshina [2022] EWFC 30; [2023] 1 FLR 388; [2022] 2 FCR 712 at [116] Mostyn J expressed the view that the Allan v Clibbery/ Lykiardopulo reasoning had been superseded: ‘Therefore, in my judgment, the rule change which allows journalists and bloggers into the proceedings has the effect of completely overturning the reasoning of the Court of Appeal which carved out an exception to the general rule concerning the reportability of proceedings heard in private.’

A “rule-change” cannot ever overturn “the reasoning of the Court of Appeal” (save as set out in Courts Act 2003 s 75). Lady Hale explained this trite law in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 at [27] and in relation to Civil Procedure Act 1997 (on which Courts Act 2003 ss 75 and 76 are modelled). Procedural rules cannot “change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210”.

Brooke LJ said much the same of practice directions in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657:

“[48] The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 [where your author represented the appellant in the Court of Appeal] at para 21, May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478 at [11], and Dyson LJ in Leigh v Michelin Tyre plc [2003] EWCA Civ 1766 at [19]-[21]. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

A problem is: judges just do not read the ICLR blog! Much of all of this on sub-subsidiary and delegated legislation was in Where have all the practice directions gone? by David Burrows in 2020.

‘No decision at a higher level is available’

The fundamental problem with G v S is that Judge Reardon, it seems, was not referred to (or just did not read up on) some very basic law and relevant rules (though I am as sure as I can be that she would be familiar with Re J). The ratio of her decision is:

“[44] … The starting point [in applications under Family Law Act 1996 Part 4] is one of confidentiality [which] means simply that the applicant must seek the permission of the court to publish information about the proceedings. It does not establish a presumption that the respondent’s Article 8 rights will prevail: in the balancing exercise conducted by the court, neither article has precedence over the other.”

As this post explains: it is not just a question of “confidentiality”. An Act of Parliament – namely AJA 1960 – looms over all this and binds all of us, courts and subjects of His Majesty alike.

Yes, an applicant must seek permission and he or she must show that publication and freedom of expression rights (Art 10) override Art 8 rights. These require intense focus on the pros and cons of each Article as explained by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591. It is not obvious to me that Judge Reardon conducted this intense focus.

Elements of open justice

Finally, this post must touch on basics of what is cumulatively called “open justice”, but which is four separate subjects. All are alluded to obiter (save in the case of nullity of marriage proceedings) by their lordships in the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417. The ratio in Scott concerns only the first in the list below, namely “open justice” (or, as family lawyers like to call it, “transparency”). As the ICLR headnote succinctly records: “The [Family Division] has no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in [private eg] in the interest of public decency”.

The open justice elements are almost entirely creatures of the common law (and see previous ICLR blogs in 2020). They are:

I had hoped I had made all this fairly clear at para 1.2 of my book, Open Justice and Privacy in Family Proceedings (2020, The Law Society) as early as para 1.2 and in subsequent paragraphs.

Had Judge Reardon considered the law as above (and as explained in further detail in eg my book) there is a possibility she might have made an opposite, and more fairly informed, decision? In the interests of “transparency” in the sense intended by the modern family law judiciary, it is possible she might have granted H’s application. As to her para 6.2 certificate: it is not clear what is to happen to that. As a serious point: perhaps any para 6.2 certificate should be scrutinised before the judgment is published (or put on-line somewhere).

Featured image: Photo by Tim Mossholder on Unsplash