Family law, open justice and anonymity

As ICLR posts have pointed out over the years (since about 2015), open justice issues comprises the following elements:

• Is the court open for general purposes, as is the case with most criminal and civil proceedings?
• What documents can be released to non-parties (eg the press) before a hearing (eg pleadings, skeleton arguments), and to help them understand the case?
• What documents can non-parties expect to read after the hearing?
• Anonymity: to what extent can parties, witnesses, children etc expect to remain anonymous?

These are matters of common law and therefore for the judge in an individual case to decide. As Toulson LJ explained in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

“[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.”

This principle applies in all court proceedings in England and Wales; and in a good few jurisdictions beyond. For example the anonymity principle was re-asserted recently in Practice Guidance (Upper Tribunal: Anonymity in Asylum and Immigration Cases) [2022] 1 WLR 2078 (4 February 2022) signed off by Lane J.

A judicial change of mind

Over recent months a Family Division judge, Mostyn J has changed his mind diametrically on the subject of open justice – especially anonymity – in family proceedings. The particular cases in which this has happened were financial order proceedings. A number of wider legal principles – going beyond open justice – are engaged by these cases. These include:

• What is open justice (what many family lawyers euphemistically call ‘transparency’) in family cases?
• To what extent may a judge differ from earlier judgments on the same subject; and even, in Mostyn J’s case, to change his own mind?
• The ‘implied undertaking’ as to release of disclosed documents.

This post will consider the first of these in the case of the most recent of Mostyn J’s cases, Xanthopoulos v Rakshina [2022] EWFC 30 (12 April 2022). In summary, and to be considered in this article: all courts must have full regard to the common law in any derogation from open justice. Secondly, a High Court judge must respect other High Court judges’ decisions (and, you would think, the judge’s own decisions); and that judge is bound by the decisions of higher courts (a principle known as stare decisis: see eg Davis v Johnson [1978] UKHL 1, [1979] AC 264). The ‘implied undertaking’ is a common law doctrine, which is as applicable in family as in any other civil proceedings.

In Xanthopoulos, after his evisceration or the wife’s lawyers’ costs and their preparation for the hearing before him, Mostyn J received an application by the wife’s advocate that the parties have anonymity. The husband was in person. Mostyn J answered the application:

“[75] In A v M [2021] EWFC 89 (5 November 2021) I stated at [104]: ‘In step with the modern recognition of the vital public importance of transparency, my default position for the future will be to publish my financial remedy judgments in full without anonymisation, save as to the identity of children. Derogations from that default position will have to be distinctly justified.”

Mostyn J therefore heard no debate on the application. In his judgment he does not summarise the argument for the point. He had only a brief application (I am told) and no submissions on law (certainly he mentions none in his judgment). In 67 paragraphs of his judgment on this issue he refused the parties’ application. In doing so he makes no mention of most of the Supreme Court and Court of Appeal cases which I summarise or otherwise refer to below.

Civil Procedure Rules 1998 r 39.2: a codification of common law

As Mostyn J says, correctly in my opinion, a codification of the open justice principle is in CPR 1998 r 39.2. He explains this as follows:

“[102] The CPR do not apply directly in family proceedings and there is no equivalent to CPR 39.2(4) in the FPR. Strictly speaking, therefore, anonymisation in family proceedings can only be ordered under the common law. CPR 39.2 recognises, incorporates and codifies the common law power….”

This is not true. Mostyn J, who is one of the rule-makers (Family Procedure Rules Committee) seems not to have read his own rules (ie Family Procedure Rules 2010 (FPR 2010)) and the new FPR 2010 Pt 7 which he personally has signed off in the past three months, or so (January 2022). The new FPR 2010 r 7.30 says that any hearing to which this the new Part 7 applies are ‘to be in public’. The Xanthopoulos case is not Part 7. That is not the point. Part 7 cases, says r 7.30, can only be in private on exactly the same grounds as CPR 1998 r 39.2 including the provision as to anonymity (see FPR 2010 r 7.30(5)).

The reference to r 7.30 is provided only to affirm that it is not only in CPR 1998 that the open court/private issue is referred to. It is reaffirmed in r 7.30. Financial order proceedings like Xanthopoulos are not covered by Part 7, but, like r 39.2, r 7.30 summarises the common law (as Mostyn J confirms of the first). And the common law covers all civil, including family, proceedings.

As relevant here, CPR 1998 r 39.2 (in exactly the same terms as does the new r 7.30 (emphasis added)) says:

“(3) A hearing, or any part of it, must be held in private if,…

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

(4) The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”

Sub-paragraphs (3) and (4) are not directly linked; but most would say that the same principles as to privacy apply to both private hearings and to anonymity (see eg PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081).

In Xanthopoulos, Mostyn J was dealing with an anonymity application (ie CPR 1998 r 39.2(4)). His ratio decidendi (reasons for his decision) could relate only to that. So what of the wider general issue of the common law on open justice? In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 Toulson LJ said (in a widely quoted and approved passage):

“[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves…. 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’.”

Defining the common law on open justice: fact specific

Not only do High Court judges (and higher) have an inherent jurisdiction in this; but they have a duty to all of us to use that jurisdiction with extreme care. Failing properly to define the law (as above), and failing to take account of, for instance, the common law as summarised in r 39.2(3)(c) (italicised above) is serious.

An assessment of the common law in the context of anonymity claims can be derived from the careful summary of the modern law by Nicklin J in Lupu v Rakoff [2019] EWHC 2525 (QB) (30 September 2019) (unsuccessful application for anonymity for pole-dancer claimants, initially published as AAA v Rakoff). He drew attention to the fact specific aspect of each case:

“[26] In A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 588 Lord Reed identified the proper approach [41]: ‘Whether a departure from the principle of open justice was justified in any particular case would depend upon the facts of that case. As Lord Toulson observed in Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455, 525 [113], the court has to carry out a balancing exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.’”

Common law and fact-specific cases

Each case depends on its own facts; but the court must (a) get the relevant underlying common law, any human rights and procedural principles right, before it (b) goes to the facts and then (c) makes its decision with reasons.

In summary and applied to financial relief cases generally – Xanthopoulos was a matrimonial financial order case – the law can be summarised as follows:

1. That the modern common law is best summarised in eg FPR 2010 r 7.30 (or CPR 1998 r 39.2, according to taste) that reference to ‘confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’. Mostyn J had forgotten r 7.30(3)(c).
2. Where confidential personal financial matters are in issue, the applicant party must go to the second above limb: that publicity would damage confidentiality. A judge should have some evidence about this from any applicant for anonymity.
3. The open justice principle applies to anonymity claims, as to all four categories of open justice elements.
4. There is no general common law principle, outside children matters, which define all family proceedings as private. The rule-makers are wrong in this (see FPR 2010 r 27.10).
5. The essence of the common law open justice principle is that set out by Toulson LJ in Guardian v Westminster at [1] (above) and tempered by the Supreme Court in PJS (above).

European Convention 1950 Art 6.1 requires that any hearing be heard in open court. Judgment shall be public; but –

“…. The press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

‘The protection of the private life of the parties’ is to a degree repeated in Art 8. This was not considered by Mostyn J.

If the principles set out in the last few paragraphs, and any other relevant open justice or privacy principles are applied to the facts, and the European Convention 1950 Art 8 (right to private life) as against Art 10 (freedom of expression) balancing exercise is done (per Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591), the court is then in a position to make a decision on any of the four publicity factors (including anonymity) referred to earlier.

Procedure: a claim for anonymity

And procedurally? I believe the wife who was seeking anonymity should have applied in advance of the hearing (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523 by FPR 2010 Part 18: Gloster LJ explained at [34] exactly what parties should do if anonymity was required in the Court of Appeal. There seems to be no reason why the same should not apply in lower family courts). She should have explained her personal position fully in relation to her and to her children and confidentiality under CPR 1998 r 39.2(3)(c) (or FPR 2010 r 7.30(3)(c) to which Mostyn J would surely have been referred if he had heard argument from advocate(s) – to be explained in Post 2.

Featured image: Photo by Amina Filkins, via Pexels.