‘An error does not become truth by reason of multiplied propagation, nor does the truth become error because nobody will see it.’ (Mahatma Gandhi)

In the six months between 30 September 2023 and 1 April 2024, 24 financial remedy judgments which were not mainly about the maintenance of children (and therefore were not protected by s 12 of the Administration of Justice Act 1960) were placed on Bailii. None of these was governed by the Financial Remedy Pilot. They are set out in the table, below.1

They show that desert island syndrome is not merely alive and well but is positively thriving and going from strength to strength.

It is dispiriting to record that of the 24 judgments, only one, Xanthopoulos v Rakshina [2023] EWFC 158, was published without anonymisation.2 It was hardly surprising that it was fully reported given that on 12 April 2022 I had published an earlier judgment in it (Xanthopoulos v Rakshina [2022] EWFC 30) without any derogation from the open justice principle. Indeed, in the final financial remedy judgment in that same case given on 4 April 2023, Sir Jonathan Cohen stated that the only reason he was publishing it without anonymisation was because of my earlier decision. He stated:

‘Following the decision of Mostyn J reported at [2023] 1 FLR 388 this couple have become widely known in legal circles. In the circumstances, there can be no justification for me keeping their identity confidential in this judgment, however unwelcome such publicity might be.’

23 judgments were published anonymously. Only two (Nos. 3 and 14 in the table) give a reason for anonymisation. O v O [2023] EWFC 161 relied on non-identification of the parties’ children, FT v JT [2023] EWFC 250 on the commercial sensitivities of the wife’s business. There is nothing to suggest in either case that a proper Re S3 balancing exercise was undertaken, or that a reporting restriction order was made under s 11 of the Contempt of Court Act 1981. While commercial sensitivities might be a reason for some anonymisation, they would not be a good reason for altogether obscuring the name of the business (see Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370, [2023] 1 FLR 120 at [74]–[75]). Equally, while prohibiting the actual naming of the children and identification of their schools is a reasonable reporting restriction measure (ibid. at [64]) wholesale anonymisation in order to prevent identification of those children, including jigsaw identification, is excessive. The consequence would be to throw the baby out with the bathwater – automatic anonymisation would result in every financial remedy case where the parties had children, a result which is plainly not in conformity with the open justice principle.

None of the other 21 judgments give any reasons for anonymisation. Of those 21 judgments, seven had no rubric, leaving the reader entirely at sea as regards their reportability. The other 14 bore the standard rubric (see below for its terms) but without any explanation why it had been applied, whether the Re S exercise had been undertaken, or if a reporting restriction order had been made.

Inasmuch as a form of reporting restriction measure (I forebear from using the word ‘order’) is to be deduced from the rubric in those 14 cases it is to be noted that in each instance there is no time-limit. Such a measure will shroud the case in secrecy in perpetuity and as such is indistinguishable from the order struck down as unlawful and unconstitutional in Scott v Scott [1913] AC 417.

I must regretfully record my opinion that none of these judgments, with the exception of Xanthopoulos v Rakshina [2022] EWFC 30, complies with the law. The law permits those judgments given in private which are not protected by s 12 of the Administration of Justice Act 1960 to be anonymised only where it is strictly necessary, and then only to that extent (Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003 para 12). A decision to anonymise can only be made following a full Re S balancing exercise. A specific order under s 11 of the Contempt of Court Act 1981 is required to prevent reporting of a hearing held in private, which orders should only be made when strictly necessary (ibid. in the guidelines on clause 14 of the model order).

None of the 23 judgments published anonymously appear to comply with these requirements.

I recognise that there is a widespread belief that family law in general, and financial remedy law in particular, is a special system different from all other types of law, justifying a policy of automatic blanket anonymisation of almost all of its cases. I also naturally accept that such a belief is not of itself illogical or untenable. But it is my very strong contention that such a special system can only exist and function where it has been lawfully enacted and promulgated within the democratic process. The existing law, properly understood, absolutely forbids the imposition of automatic blanket anonymity on non-children financial remedy proceedings heard in private. Anonymity can only be imposed exceptionally and then only following a genuine Re S exercise.

Automatic blanket anonymity requires a change in the law, and that, as I have pointed out more than once, can only be achieved by primary legislation (e.g. Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52, [2022] 1 WLR 4370 at [82]–[85]; Augousti v Matharu [2023] EWHC 1900 (Fam).

It is no answer to say ‘but we have always done it this way’. That is what the adherents of secrecy said in 1913, and we know what the response of the House of Lords was in Scott v Scott.

We should recall why the House of Lords erupted with such ferocity. It was because the judiciary had invented a secret process for those types of matrimonial case which were considered to involve ‘embarrassing’ material. That secret process went far further than preventing a journalist from reporting such a case. It even prevented a party like Mrs Scott from discussing the case with her own father. Lord Shaw of Dunfermline stated in language the power of which has rarely been heard before or since:

‘If the judgments, first, declaring that the Cause should be heard in camera, and, secondly, finding Mrs. Scott guilty of contempt, were to stand, then an easy way would be open for judges to remove their proceedings from the light and to silence for ever the voice of the critic, and hide the knowledge of the truth. Such an impairment of right would be intolerable in a free country, and I do not think it has any warrant in our law. Had this occurred in France, I suppose Frenchmen would have said that the age of Louis Quatorze and the practice of lettres de cachet had returned.’

The pressure to hold nullity cases alleging incapacity in secret was maintained. Eventually, Parliament acceded to that pressure and passed the Supreme Court of Judicature (Amendment) Act 1935 which provided for the insertion of a new s 198A in the Supreme Court of Judicature (Consolidation) Act 1925:

‘In any proceedings for nullity of marriage, evidence on the question of sexual incapacity shall be heard in camera unless in any case the judge is satisfied that in the interests of justice any such evidence ought to be heard in open court.’

We find ourselves in the same position now as the House of Lords found the family justice system in 1913. The standard rubric, routinely applied to almost all financial remedy judgments, is in these terms:

‘This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.’

It should be clearly understood that ‘publication’ is not confined to a newspaper report or a legal blog. Publication would extend to any written or oral revelation to a third party of the contents of the judgment which revealed the identity of any members of the family in question: Re B (A Child) [2004] EWHC 411 (Fam) at [68]–[72]. For example, if a party to such an anonymised judgment, such as the wife, showed it to her grandson 30 years after it had been given explaining that it was about her and her ex-husband, she would be in breach of the rubric, and, apparently, potentially in contempt of court. I would suggest that such a bizarre impairment of the right to talk about her family history to her grandson is as intolerable now as it was 111 years ago. Such a perpetual gagging order, for that is what the rubric prescribes, should not be countenanced in a free country such as ours.

It is time for judges and practitioners alike to grasp the nettle and to accept that the current practice of automatic blanket anonymity can only lawfully be maintained with the fiat of Parliament.

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