In G v S (Family Law Act 1996: Publicity) [2024] EWFC 231 (B) (6 June 2024) HHJ Reardon asked:

‘What is the default position in terms of publication in a case where s 12 [of the Administration of Justice Act 1969] does not apply?’

And answered:

‘42. … I would suggest, albeit tentatively and in the absence of authority,1 that the starting point should be one of confidentiality in any application under FLA 1996 which involves allegations of domestic abuse or other harm, and that the burden of making the application should lie with the person seeking permission to publicise the information. That is certainly the basis on which these applications are currently dealt with in the Family Court, and the parties are almost invariably anonymised in published judgments.’

‘44. My decision that the starting point is one of confidentiality 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.’

Thus, the decision ostensibly addresses only a narrow procedural question: on which party falls the burden of bringing the issue of reportability before the court? It disavows that it creates a presumption in favour of secrecy.

But that is, with respect, precisely what the decision achieves. In so doing it is not merely at odds with ‘the general rule’ promulgated in two decisions of the House of Lords, which in turn rely on the foundational decision of the House of Lords in Scott v Scott [1913] AC 417; remarkably (if unintentionally) it purports to reverse that rule.

The general rule

In Pickering v Liverpool Daily Post and Echo Newspapers Plc and others [1991] 2 AC 370 Lord Bridge stated at 416:

‘I believe that the enactment which is of central importance to the issues which your Lordships have to decide is section 12 of the Act of 1960 which provides:

“(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 relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant; (b) where the proceedings are brought under Part VIII of the Mental Health Act 1959 , or under any provision of that Act authorising an application or reference to be made to a mental health review tribunal or to a county court; (c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published; (d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings; (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.

(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.

(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.”’

There are undoubted difficulties in construing this section, but certain effects of the section are clear. 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. To some extent at least both the general rule and the exceptions reflect the common law principles as stated by Viscount Haldane LC in Scott v Scott [1913] AC 417, 437–438, where he said:

‘While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done. In the two cases of wards of court and of lunatics the court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.”

Thus the exceptions in paragraph (a) are all proceedings requiring for their just disposal the safeguard of privacy which proceedings in wardship always attracted.’

HHJ Reardon apparently did not have this decision drawn to her attention. Had it been, it would presumably have been referenced in her judgment. It had not fallen into obscurity. Munby J referred to it in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142 at para 82(v) and extra-judicially as recently as 6 July 2022 in Some Sunlight Seeps In.

Similarly, HHJ Reardon overlooked para 18 of Lord Steyn’s speech in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 entitled ‘The general rule’:

‘In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.’

While Lord Steyn here specifically referred to the ‘ordinary’ rule in criminal proceedings, it must follow that the general rule applies equally to proceedings of any nature in a civil court which do not fall within an exception in s 12, or within s 97 of the Children Act 1989. Any other interpretation would conflict with Pickering.

The omission of any reference to para 18 (‘the general rule’) of Re S is particularly surprising given that at para 28 of G v S HHJ Reardon quoted the preceding para 17 of Lord Steyn’s judgment in Re S where he stated:

‘First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.’

However, Lord Steyn’s conclusion at para 17 in Re S that neither article 8 nor 10 has priority over the other must be read in conjunction with the following para 18. Taken together paras 17 and 18 of Re S mean that the burden of seeking a departure from the general rule falls squarely on the party seeking secrecy. That party must make the application for the necessary reporting restriction order. But on the hearing of that application neither article has priority.

Finally, one must record that the legal analysis in G v S (paras [14]–[28]) makes no mention of Scott v Scott.

Conclusion

The ordinary or general rule referred to in Re S at para 18 is not confined to criminal proceedings. Were it to do so, it would conflict with Pickering which laid down a general rule for all those cases heard in private which are not subject to one of the exceptions listed in s 12(1) of the 1960 Act.

Nor does the general rule only operate in favour of the press. The rules themselves have been formally extended to allow legal bloggers to attend (FPR 27.11(2)(ff)). But the right to report does not stop with journalists and legal bloggers. Unless the case is covered by s 97 of the Children Act 1989, or by one of the exceptions listed in s 12(1) of the 1960 Act, only a formal reporting restriction order can prevent ‘publication’ by a party (i.e. revelation) of anything that took place in court, whether to a journalist, a relative, a friend or anybody else.

The general rule is full reportability of ‘everything that took place’ in court. Exceptions to that rule will only be allowed in unusual and exceptional circumstances and the burden of seeking a departure from the rule falls squarely on the party seeking secrecy.

HHJ Reardon’s statement at [44] of G v S that the matter is devoid of authority is difficult to understand. On the contrary, the highest court in the land has on two occasions (Pickering and Re S) pronounced on the subject.

In my respectful opinion courts exercising family jurisdiction have to understand, accept and apply the general rule laid down in those decisions.

In all the debate about ‘transparency’ of family proceedings, sight is almost invariably lost of the signal feature of a court case. A court case is among the more significant interactions in our polity between a citizen and an organ of the state.

For reasons that hardly need to be stated, all interactions between citizens and organs of government should generally be fully open to public view and public scrutiny. Exceptions should be strictly limited. National security would be an obvious exception. Personal embarrassment would not.

Secret dealings between state courts and private citizens are, as Lord Shaw said in Scott v Scott, an attack upon the very foundations of public and private security. Secrecy in such dealings impairs the rights, safety and freedom of the citizen and the open administration of the law.

I venture that readers should enjoy the spirited discussion about the applicability of the open justice principle in matrimonial finance cases in our podcast Law and Disorder between me, Lord (Charlie) Falconer and Baroness (Helena) Kennedy KC.