Between August 2022 and June 2023 I observed, via Teams, a number of hearings in a single case heard by HHJ Shelton in Leeds and now reported as AB v CD [2022] EWFC 197 and 198; and [2023] EWFC 103.

The case concerned cross-applications for variation of a 2012 maintenance order made under the Matrimonial Causes Act 1973. The extant order was that James pay £100 per month to his former wife Beth on a joint lives basis, with a further £1,500 pcm to the parties’ severely disabled daughter Isabelle, whose physical and intellectual disabilities mean that she requires round-the-clock care from Beth and, when available, a number of carers funded by the local authority.1

Initially, I intended to write about the case because reported cases about maintenance for a disabled adult child under the Matrimonial Causes Act 1973 are few and far between. Given the subsequent announcement of a new Financial Remedies Court reporting pilot, I have now taken the opportunity to discuss the process of legal blogging itself: the rules around accessing the hearing, the practicalities of reporting, the framework for controlling what can be reported, and the drafting of a reporting restriction order.

James sought to end the maintenance to Beth and pay £400 pcm to Isabelle, and Beth sought the same overall quantum, but a reduction to £1 to her and an increase to £1,599 for Isabelle. Courts retain jurisdiction beyond a child’s 19th birthday in ‘exceptional circumstances’ under both s 29(3) Matrimonial Causes Act and Sch 1, para 2(1) Children Act 1989, and a child’s disability is an established exceptional circumstance.2

The quantum of child maintenance is now determined by reference to James v Seymour [2023] EWHC 844 (Fam), but this is a discretionary exercise and a child’s disability will give rise to different financial needs. Maintenance for a spouse is based on need and, to the extent it survives and is not double-counting, compensation; and when considering whether to end a joint lives maintenance order, the court must consider whether the recipient is able to transition to independence without undue hardship. However, in circumstances where Beth and Isabelle’s needs were so entwined, the overall quantum the household received was what was important – the actual division between Beth and Isabelle seemed significant only to the extent that it affected their respective eligibility for benefits.

I joined part-way through the case, in August 2022, and observed about seven days of hearings spread over almost a year. I was fortunate that the case was being heard online, which was because of the parties’ geographic distance from one another. Towards the end, as ‘a regular’, the court canvassed my availability for future hearings as well as those of the parties (although I would never have permitted my availability to determine any aspect of listing). Given that this was a variation application, there had of course been previous proceedings – in fact there had been several sets of proceedings in the past. On this variation application alone, Rhys Taylor, Beth’s barrister, acted pro bono via Advocate for something like eighteen hearings starting in 2020.3 That these proceedings were marathon was for a variety of reasons tied principally to the parties’ and Isabelle’s health over time and the effect these had on receipt of benefits by Beth and Isabelle, as well as the impact of illness and Covid-19 furlough on James’ earnings. Attempts at mediation had been unsuccessful in part because of serious illness and in part, it appears, because of various objections each had made to certain aspects. These were burdensome proceedings for all involved, in terms of court time and the related stress, uncertainty, and workload. There was some discussion about the need for an end to litigation through making an early judgment so, as the husband put it, he could live his life normally. As the welfare benefits position was unclear, HHJ Shelton decided it was better to postpone a determination by a number of months and try to achieve an order that would last long-term than make an order precipitously and risk future proceedings.

Attending a hearing

Accredited journalists and those who fulfil the criteria to be ‘legal bloggers’ (collectively ‘reporters’) have been able since 2018 to access most private Family Court hearings and to report on them subject to the court’s permission. The definition of a blogger is tightly defined. They must be:

• a person who is authorised by a practising certificate to conduct litigation or exercise a right of audience in the family court; or
• a lawyer4 working for the Law School, Faculty or Department of a Higher Education Institution designated as a recognised body pursuant to s 216 Education Reform Act 1988; or
• a lawyer attending on behalf of a registered educational charity who received written confirmation of their accreditation on a list maintained for this purpose by the President of the Family Division. The only current educational charity listed is the Transparency Project. While there are of course other groups interested in reporting court proceedings, such as Open Justice Court of Protection Project, they are not formed as charities.

All legal bloggers are therefore law-degree educated persons who are either practising law, in legal education, or authorised by the Transparency Project, which is in turn authorised by the President of the Family Division and, of course, regulated by the Charities Commission.

The first reporter to attend a hearing in this case was my fellow Transparency Project trustee, Dr Julie Doughty, who then handed the case over to me. It was therefore she who dealt with the issue of admission to the hearing. Under FPR 27.11(3) a reporter – the collective name for journalists and legal bloggers – can only be excluded from a hearing if: (a) it is ‘necessary’ in the interests of any child, the safety or protection of a party or witness, or the orderly conduct of proceedings; or (b) where justice would otherwise be impeded or prejudiced. Necessary has the definition given to it in Re H-L (A Child) [2013] EWCA Civ 655. Those advocating for the exclusion of the reporter therefore bear the burden of persuading the court that exclusion is necessary or that justice would otherwise be impeded, and submissions should be focused on these criteria. The reporter does not have to justify why they should be admitted beyond establishing their eligibility, although they may wish to respond to any objections.

In this case, Beth did not object to Julie’s presence and Mr Taylor was familiar with the Transparency Project and the legal framework. James was not happy, arguing that this was ‘forcing him to get a lawyer’, although the judge held that Julie could remain. At a second hearing also attended by Julie, he did instruct counsel who again sought to exclude her, arguing that James would suffer anxiety due to her presence and this was a private hearing with no third parties. That of course is not the test, and the purpose of FPR 27.11 is to enable reporters into private hearings. The judge directed himself to the Practice Note by Peel J (to the effect that Peel J can be consulted if a judge needs advice on legal blogging); and said the case is not about a child and he had to consider the safety and protection of the parties including James’ ability to give evidence. He concluded that Julie’s presence was not disruptive and there were no grounds to exclude her.

My access to the hearing

As Julie was not available for the next hearing I decided to attend. I emailed the court introducing myself, requesting the Teams link, and attaching a scan of my passport as photo identification and Form FP301, the Notice of Attendance of Duly Authorised Lawyer. This is a one-page form that requires the legal blogger to undertake that they are a duly authorised lawyer within the meaning of FPR 27.11(7)(b) and confirm that they are attending ‘for journalistic, research or public legal educational purposes’, have no personal or agency interest in the case, and will abide by any reporting restrictions on pain of contempt.

I fulfil each of the criteria to be a legal blogger, being a solicitor who runs a free legal advice clinic, an associate professor of law, and a trustee of the Transparency Project, but as the form was not clear whether I needed to identify under which hat I attended, I ticked them all. As the form requires the date of the hearing, it appears necessary to file a new FP301 for each hearing although I understand that some bloggers only file the one – the form does not specify. It would be less work for the court to have a form that applied through all hearings in a given case with a continuing obligation to communicate any changes in my status. It is not as though, having submitted Form FP301 in the past, I would consider myself not bound by the terms at any future hearing, not least because the form merely evidences my knowledge of rules set out elsewhere.

In her discussion of a recent unhappy legal blogging incident reported as Louise Tickle v A Father & Ors [2023] EWHC 2446 (Fam), Lucy Reed KC has written that ‘a journalist turning up unexpectedly can be discombobulating, anxiety inducing, even irritating. And … it adds just one more thing to the teetering Jenga pile of STUFF that the judge has to balance to keep the show on the road.’5 That being the case, I would have understood a degree of irritation on the part of HHJ Shelton, however professionally I would expect him to behave. If that is how he felt, he hid it extremely well. I was at all times treated with consideration and exemplary courtesy by HHJ Shelton and his court staff, and while I was aware that the husband did not want me there, the parties themselves were manifestly professional in court despite the pressures of the case, financial and otherwise.

I note that some of the journalists accessing hearings simply send a one-line email attaching a press card and requesting a link. I properly introduced myself, but believe I was assisted by being an academic and a practising solicitor as opposed to a journalist about whom there is perhaps more suspicion. I would nevertheless have declined to say how the case came to be known about by the Transparency Project, if I had known that (which I did not, not being a trustee at the relevant time). In Louise Tickle v A Father & Ors Lieven J suggests that this will rarely be appropriate unless the court is concerned that the reporting itself is part of a litigation strategy by one party. Although this judgment post-dates my legal blogging, in the event neither Julie nor I were asked.

The case itself

The case turned on the financial needs of Beth and Isabelle’s household. The local authority provided around £45,000 pa for Isabelle’s care, including for carers. Unfortunately, their main long-term much-loved carer had recently retired and Beth had not been able to find anyone else who seemed capable of having the same close relationship with Isabelle or expertise. A number of carers left after a couple of days saying they were no longer interested in the role. Isabelle was non-verbal and communicated using Makaton: untrained carers could not, therefore, communicate with her anyway.

This meant that at the end of the financial year Beth had to return a very substantial amount of unspent money, earmarked as wages for Isabelle’s carers, to the local council. She was not able to use the money for other needs (except by approval of a council panel to meet a need identified in Isabelle’s care plan) or to pay herself. Despite the fact that the lack of carers meant that Beth picked up all the extra care herself, she was entitled only to carers’ allowance which is currently £76.75 per week. A recent request for emergency cover had been refused.

As an observer, hearing about the benefits and funding provided to Isabelle, what came through was the sheer exhausting burden of administering the money, finding and retaining carers, ensuring coverage, preparing timesheets for auditing by the council, and arguing with them for the resources Isabelle needed. It seemed to be a full-time job in itself even before one got to the normal running of a household and the care of Isabelle.

One issue in the case was whether Beth had any ability to obtain a paid job on top of this, which was James’ position. The authority had agreed to fund Isabelle’s attendance from Monday to Friday at an educational facility for disabled adults, which would have, in theory, freed Beth up during the week.

The judge explored this in some depth and concluded that Beth had no current ability to work, although he emphasised the ‘current’. She had a serious deteriorating medical condition (about which her GP testified) and even if she was not caring for Isabelle Monday to Friday, caring for her round-the-clock from Friday afternoon through to Monday morning would total some 66 hours of work, an amount which concerned the GP who thought she would need several days of recovery time from each weekend. Planned treatment for Isabelle also meant that Beth would need to take weeks, if not months, off from any paid role to care for Isabelle during her medical recovery, and in the run up to this Beth and Isabelle had 16 medical appointments between them in one month. Moreover, as the GP pointed out, finding a carer who could give Isabelle the same level of care as Beth could was incredibly difficult and Beth was the most knowledgeable advocate for Isabelle at medical appointments. Even if a reliable carer for Isabelle could be found so that Beth could work, the local authority would have to agree to fund the extra hours of care that Isabelle would need during Beth’s absence.

James had instructed a barrister via Direct Access to undertake the cross-examination of Beth but could not afford to be represented at later hearings. Beth’s testimony did not yield anything other than, in my mind, an impression that she carefully accounted for all expenditure and was not profligate. In contrast, there were a number of elements of expenditure by James which suggested he was living beyond his means. He had rent-free use of a large home with a swimming pool, owned by a family trust which he argued would not allow him to downsize, although he did not present any evidence of this. He said he had the obligation to maintain the house and this was costly, but again had provided no evidence of that. He had a wife who was not employed (but received rent from a flat bought by the trust which he described as an expense overall), two other children to support, and a heron had eaten the koi carp that had been expensive to replace. Thus, although he had a very healthy income from his employment, his expenditure was at a level that was simply unsustainable.

I do have some sympathy for James’ position. The court jurisdiction to order a parent to maintain a child into adulthood where there are exceptional circumstances would appear, in theory, to be temporally limitless.6 There has long been a principle that on divorce people should not be cast onto the public purse if there is an alternative of funding within the marriage, but this denies the reality of the costs of caring for someone 24 hours a day, 365 days a year, for potentially their whole life. He had competing obligations to children and spouses of different marriages and so his ability to plan for the future, including retirement, is extremely difficult with these kinds of open-ended obligations. But this was a case, found the judge, where James had ‘recklessly taken on responsibilities he could not afford’. James’ reasonable needs were found to be some £5,500 to £6,000 pcm whereas he was spending just under £8,500 and had a large amount of debt. The judge found that his spending was proportionately much greater than that of Beth, as was his standard of living. Although James is in his fifties and wishes to reduce work in order to retire in the next few years, the judge said a number of times that he did not see how this was going to be possible without a change in lifestyle, and urged him to reorder his affairs to enable him to support both households.

Beth’s position was also very difficult, albeit not of her own making. Although she was clearly much loved, Beth’s whole life since Isabelle’s birth had been dedicated to meeting Isabelle’s needs. Whether she would have welcomed the opportunity to work outside the home and thus have a corner of life away from her caring responsibilities was to me unclear, as her position was that she was unfit to work. She would have needed an exceptionally understanding employer and I felt that there seemed little sense in her working if the upshot was that the state would need to pay carers – who would need to learn Makaton to communicate with Isabelle – to enable this, and with no guarantee of an equivalent level of care for a young woman with very complex needs.

By this point in the case, it was looking as though the judge would require James to meet Beth’s income needs shortfall on the basis that James had the income to do so if he cut the fat elsewhere. The difficulty lay in calculating these needs. Hours and hours of the hearings focused on painstakingly calculating Beth’s household income and expenditure; on reworking figures on different premises and adding these into spreadsheets shared on the Teams screen. The judge directed himself to O’Dwyer v O’Dwyer [2019] EWHC 1838 (Fam) which refers to the judge’s role in managing budgets, but also noted that he could not micromanage the parties’ lives. Nevertheless, he was clear that he wanted to get it absolutely right, both to be fair to the parties and to try to minimise the need for any future return to court given the toll of the proceedings on them, but the calculation was complicated by a number of factors. Isabelle was going to a specialist educational facility but would have to take some time out for medical treatment: both of these things affected her entitlement to benefits but precisely what effect they would have and precisely when was not known. The rules – and both Mr Taylor and the local Welfare Rights Group had done a deep dive into them – seemed astonishingly complex and yet left issues of interpretation open. The way in which the DWP would interpret one of its own ambiguous rules was not known. Outstanding assessments in respect of Beth’s own benefits entitlement caused hearings to be postponed until more information was available. Benefits allowances changed but so did costs of living. ‘None of the figures will sit still’, complained Mr Taylor at one point.

It is here that we come to an issue that has caused me much discomfort. While the judge and Mr Taylor applied the latest figures for Beth’s income and expenses to a spreadsheet (the judge was assessing what was reasonable as they went), I became aware of an error in their calculation. (The parties themselves appeared rather disengaged, with glazed eyes.) No one had realised that universal credit is paid calendar monthly whereas other benefits are paid 4-weekly, which is not the same at all (52 weeks/12 months = 4.33 not 4). I was on the horns of a dilemma. It was likely that the maintenance order would be set at a level to meet the shortfall so if they proceeded on this basis, the outcome would be wrong and lead to further hearings and more stress. As a solicitor, I was an officer of the court. Did I shed that identity when I became a legal blogger – an observer? Did it matter whether or not the parties were represented, and was the fact that the error was common to all relevant? What would a journalist in the same situation do? Should I email the court later – and how exactly would that be more appropriate than intervening now? In the end, having mentally run through all these points at immense speed and come to no conclusion at all, I nevertheless I put my camera on and the judge interpreted this correctly as my wishing to say something. They accordingly recalculated, and the judge said they would all need to go away and double check everything. I note that the President’s new guidance indicates that reporters must ‘assist the Court in achieving the Overriding Objective in FPR r1.1, which is to resolve cases justly’, but remain ambivalent about whether I did the right thing. Legal blogging remains a brave new world.

In the end, the final order was that James should pay £1,199 per month to Isabelle and £1 per month to Beth. It was, noted the judge, less than Beth wanted but sufficient to meet her outgoings on the latest figures, and if it was any less, there was a risk that Isabelle and Beth would have to leave their specially adapted home and would be homeless. The judge found that Beth would not be able to adjust to independence without undue hardship. It was significantly more than James had wanted to pay, but the judge found that he could pay it if he controlled his expenditure to what he really needed.

Permission to report

It is understandable that some or all parties to a case are going to be worried about the presence of someone intending to report and what they may write. However, admission to a hearing does not mean that it can be reported. A reporter can attend all the hearings in a case and fail at the end to obtain permission to report either at all, or in any meaningful way. (The Reporting Pilot changes this by creating a presumption that reporting will be allowed, hence being called a ‘transparency order’ rather than, as I had, a reporting restriction order, but there can still be restrictions on what can be reported.) In making this bald statement, I am for the most part ignoring the discussion that has taken place both in judgments and in articles, often published in this journal, about whether or not financial remedy cases are properly and correctly characterised as ‘in private’, whether there is any implied duty of confidentiality, the efficacy of rubrics (the wording for which seems to change with the wind), or the view expressed by Mostyn J that in the absence of a specific reporting restriction order, a reporter in a financial remedy hearing is fully entitled to publish.7 The reason for this omission is one of practicality: no one wants to be the case study in which the law of contempt is clarified. That is of course, precisely why it should be clarified: the uncertainty is not helpful to the cause of transparency. Until these issues are resolved, it is sensible to be cautious, which from my point of view meant obtaining an order that explicitly granted permission to report rather than left it to statutory or judicial interpretation.

It is not necessary (unless the court requires it) to make a formal written application for permission to report. Most courts are willing to accept an oral application or an email and this is suggested by the President’s Guidance. I was clear early on that I wanted to report for the Transparency Project website. Later, I modified this to say that I wanted to also publish in this journal, because it had become evident that this was one of very few examples of financial remedy cases being blogged in circumstances where a future reporting pilot was anticipated; and that the reporting restriction order in my case was without a template precedent.

Whereas refusal of attendance is based on ‘necessity’ and the interests of justice, what, if anything, can be reported and the contents of any reporting restriction order depends on the balancing of the relevant Art 6, Art 10 and Art 8 rights set out in Re S [2004] UKHL 47. This requires that that a court apply an ‘intense focus’ to the ‘comparative importance of the specific rights being claimed in the individual case’. In this, the child’s best interests are ‘critical … although they will still have to be balanced against the other rights asserted’.8 I sensed early on that I would be able to report, but expected there to be various restrictions. At one stage, the judge mooted some kind of editorial control but fortunately never mentioned this again – it would have been inappropriate and indeed placed him in a very difficult position. At a later hearing, in response to a concern raised by the husband, he said ‘Ms Morgan will write what Ms Morgan writes’. I had, however, been clear that I was not seeking permission to name the child and that in order to avoid identification of her, this meant anonymity for her parents. I also provided assurances that I had no intention of reporting anything until the court had the opportunity to consider making a reporting restriction order which meant that the court did not have to deal with interim restrictions. That was again very helpful to the court, but was a luxury of not being held to any artificial deadlines. Journalists are often in a position of wanting to report an interim hearing to report a current issue, and it can be a matter of some frustration if they cannot. Academics, frankly, are not exactly known for catching the zeitgeist.

My position that the child should not be named was one I came to after undertaking my own mental Re S balancing exercise. I am absolutely positive that HHJ Shelton would not have permitted it in any case. His intention to protect Isabelle personally from being identified had been clear from the start. If the case had involved the parents only, I may well have sought permission to name them. While Mostyn J has expressed the view that people are entitled to know who is in court, and that in most cases the fact that a couple may have children does not change this, it seemed to me that this was one of those cases which Mostyn J acknowledges as an exception to the principle.9 The evidence included intimate detail about Isabelle’s personal care needs which made it at times similar to the type of evidence heard in Court of Protection cases, and an aspect of Isabelle’s Art 8 privacy rights is dignity. To report her health situation and needs accurately to enable better understanding of the context of the case meant not naming her. I was also mindful that she was not directly represented so there was no advocate directly tasked with articulating those rights, although the parties could make submissions about these. This meant, to me, as someone who teaches children’s rights, that it was essential that those rights be talked about as part of the process of considering what I could report. It should not be, as Lady Hale had said in a very different context, a case fought on grounds selected by the parents only. Against Isabelle’s privacy rights lay her interest in there being more public discussion about the issues in the case, including the moral and legal obligations of parents, the role of carers including her mother, and the role of the state in providing support for disabled people. She had Art 6 rights and Art 10 rights – the right to tell her own story10 – as well as Art 8 rights, as did her parents, and I had Art 10 rights too: a restriction on reporting is a derogation from those rights. The mother would have favoured reporting on an unanonymised basis, but (perhaps sensing the prevailing wind) did not press this argument. The father sought anonymity. My assessment was that reporting, but with anonymisation, was the appropriate balance in this case. Of course, my assessment was worth nothing at all. It is a decision for the court.

The reporting restriction order

As the Transparency Reporting Pilot only, at this point, covered children cases, there was no template order that could be used for this financial remedy case. I knew that the journalist Louise Tickle draws up two separate lists during the hearings she attends, of respectively those things she wants to seek permission to report and those things she suggests restricting. After unsuccessful attempts to replicate this exercise, I found I had inadvertently written a draft court order – these things happen – and that it gave me carte blanche to report anything other than that which the order excluded, which was identification of the child and the parties and certain other features which would have enabled jigsaw identification. This became the order adopted by the court. (I note the newly released financial remedy template transparency order takes the same ‘everything but that which is excepted’ approach.11) I pilfered some wording from the child transparency pilot template orders, but with alterations to reflect the different legal framework for reporting in a financial case. My draft records that the court has undertaken the exercise set out in Re S [2004] UKHL 47 and concluded that the restrictions set out in the order are necessary to secure the proper administration of justice and to protect the parties’ daughter, and that there was no sufficient countervailing public interest in disclosure. It states that s 12 Administration of Justice Act 1960 continues to operate save and insofar as the order varies it, and that if permission be needed under the Judicial Proceedings (Regulation of Reports) Act 1926 (an Act which may or may not apply, depending on who you ask), it is given.

In fact, the court itself did not, despite my prompting, explicitly undertake the Re S exercise; or at least did not express matters in those terms. This was perhaps because no party was suggesting that they be named, although in Gallagher v Gallagher (No 1) (Reporting Restrictions) [2022] EWFC 52 Mostyn J reminds us of Lord Woolf’s warning that ‘When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.’12 It did, however, make the order enabling me to write this article. Additionally, the judge agreed to publish his judgments, again suitably anonymised. Any anonymisation therefore needed to fit with the terms of the order so we did not have a situation where I was explicitly prohibited from reporting something that the judgments include.

Conclusions

This was an interesting case and one that I am glad I was able to observe. The judge hoped, I know, that his decision would stand for some time. In reality, I think that James will be anxious to argue that Beth does at some time become capable of work, although for the reasons stated above I am not sure what effect that should have. The case raises interesting issues about moral and legal responsibility within the family and in society as a whole. Of course, such discussions derive from the real lived experience of the parties and while Beth was interested in the issues she faced as a primary carer being talked about, James did not welcome the publicity and perhaps anticipated public opprobrium. What was evident was that both parties were very tired of the litigation, and of a benefits system that was so onerous in its requirements and unpredictable in its assessments, that the parties were never able to plan or see the light at the end of the tunnel.

A shorter adapted version of this article has been published on the Transparency Project website at https://transparencyproject.org.uk

More information

• AB v CD [2022] EWFC 197 and 198; and [2023] EWFC 103; the reports from the case I observed.
• The Transparency Implementation Group website www.judiciary.uk/about-the-judiciary/our-justice-system/jurisdictions/family-jurisdiction/transparency-implementation-group/ contains the Farquhar report on transparency in the financial remedies court and useful guidance.
• FPR 27.11.
• Re S [2004] UKHL 47
• Form FP301 Notice of Attendance of Duly Authorised Lawyer – the form that a legal blogger must submit to the court www.gov.uk/government/publications/form-fp301-notice-of-attendance-of-authorised-lawyer
• The President of the Family Division’s guidance on the financial remedies pilot is www.judiciary.uk/wp-content/uploads/2023/12/Reporting.PilotScheme.Final_.President.pdf
• Financial Remedies Court Practice Guidance by Peel J and HHJ Hess (13 May 2022) addresses the implications of Mostyn J’s decision in Xanthopoulos v Rakshina [2022] EWFC 30 and is available at https://financialremediesjournal.com/download/c70e5bcd1c334927bfa0b40dccb9eb82
• Louise Tickle v A Father & Ors [2023] EWHC 2446 (Fam) and Griffiths v Tickle [2021] EWCA Civ 1882, two appeals by the journalist Louise Tickle about her ability to report, both of which contain useful guidance.
• The guides produced by the charity the Transparency Project, What to do when a reporter attends (or wants to attend) your hearing: A guidance note for judges & professionals (pilot and non-pilot version) are on the Transparency Project website https://transparencyproject.org.uk/updated-guidance-what-to-do-if-a-reporter-attends-or-wants-to-attend-your-hearing-pilot-and-non-pilot-court-versions/ together with some examples of blog posts https://transparencyproject.org.uk/legalbloggers/