In a familiar line of cases of which the first was BT v CU [2021] EWFC 87, [2022] 1 WLR 1349, paras [100]–[114], and the last In re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam), [2023] 4 WLR 48, paras [49]–[62], and Augousti v Matharu [2023] EWHC 1900 (Fam), paras [68]–[93], Mostyn J has explosively ignited a most necessary debate about the anonymisation of judgments in financial remedy cases. Part of his compelling analysis – which, so far as I am aware, no-one has yet succeeded in challenging successfully – relates to the use, or as he would have it, the inveterate misuse of the rubric attached to judgments in such cases.

I have myself written about the rubric in a number of recent articles: see ‘Some Sunlight Seeps In’ [2022] FRJ 79; Law Commission – Contempt of Court Project: Memorandum by Sir James Munby (26 September 2022); ‘Family Justice: Ostiis Apertis? Or a mantle of inviolable secrecy? A challenge to those who would keep the doors closed’ (12 January 2023); and ‘Groundhog Day: A response to the Report of the Financial Remedies Sub-Group of The Transparency Implementation Group’ (2 July 2023).

On 13 April 2022, the day after Mostyn J had handed down his judgment in Xanthopoulos v Rakshina [2022] EWFC 30, Moor J handed down, in public, a judgment in a financial remedies case (it was in fact an appeal) in which the parties were named: Lockwood v Greenbaum [2022] EWHC 845 (Fam). The attached rubric read:

‘This judgment was delivered in public. It can be reported in full but the two children of the parties must not be identified other than as they are referred to in the judgment. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.’

With all respect to the judge, this surely invites two questions, to neither of which there is a satisfactory answer: (1) What (if any) is the effect of this in law? (2) What is the basis for the assertion that failure to comply ‘will be a contempt of court’?1

It is fairly clear that Moor J’s approach is not consistent with that of Mostyn J.

A particularly egregious example of the problem can be found in the recent case of Mahtani v Mahtani [2023] EWHC 2988 (Fam). I have no wish to scapegoat this particular judge, for the example is, unhappily, representative of too many others. The judgment bears the standard rubric in red at the top:

‘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, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court (emphasis added).’

In fact, and despite this rubric, the heading of the judgment as published by the judge includes the full names of the parties.

What are the media supposed to do? Can they name the parties or not? Are they at peril of proceedings for contempt if they do?

Surely, we cannot allow this kind of thing to go on.

I offer this latest contribution on the topic as part of what ought to be an anxious ongoing debate.

History of the rubric

At about the turn of the Millennium, two innovations created the practice with which we are now familiar:

(1) During 20012 the practice emerged of attaching two standard form rubrics to written judgments handed down in the Family Division. In their developed form, one rubric read as follows:

‘I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.’3

The other rubric (what I shall refer to hereafter as ‘the rubric’), in its developed form, read:

‘This judgment was handed down in private on [date]. The judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.’4

(2) During 2002, electronic templates for the preparation of written judgments were made available to the judges. These templates (i) automatically formatted the judgment so as to comply with Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194, para 1.1; (ii) automatically generated the appropriate form of neutral citation number; and, in the case of the Family Division template, (iii) automatically inserted both rubrics (though the judge could, if desired, alter the text of the rubrics or delete them altogether).5

The problems with the rubric

The current problems in relation to the rubric – to speak plainly, its all too frequent misuse – are the consequence of the combination of three factors:

(1) The purpose and effect of the rubric are, even after all these years, still not as well understood as they should be.

(2) This is exacerbated by the inveterate elision in professional understanding and practice of those types of case which are covered by s 12 of the Administration of Justice Act 1960 (and/or s 97(2) of the Children Act 1989) with those types of case which are not. Cases in the former category are subjected to strict statutory secrecy. Cases in the latter category are subject to no such restrictions. Yet the practice has been to treat them as if they were. Hence the application in such cases of a mordant rubric to the judgment threatening imprisonment if a word is breathed about the case.

(3) The problem is further exacerbated by the unhelpfully misleading form of the template.

I shall return in due course to the last point, but for the moment focus on the second.

In children cases, whether brought under the inherent jurisdiction or the Children Act 1989 (including financial remedy proceedings under Schedule 1), there are stringent statutory provisions restricting what can be reported:

• Section 12(1)(a) of the Administration of Justice Act 1960 prohibits the publication of ‘information relating to proceedings … in private’.6 For detailed analysis of what this means see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para [82], and A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, paras [112]–[114].
• Section 97(2) of the Children Act 1989 prohibits the identification of the children.

It is well established that these restrictions can be relaxed, either in accordance with s 12(4) of the 1960 Act or s 97(4) of the 1989 Act or, more generally, by judicial order.

In the case of financial remedy proceedings under the Matrimonial Causes Act 1973, the legal landscape is in this respect entirely different:

• There are no relevant statutory prohibitions in place. Section 12 and s 97 have no application and the Judicial Proceedings (Regulation of Reports) Act 1926, even if it applies (which is debateable) does not prevent either the publication of a judgment or the identification of the parties.
• As Mostyn J has convincingly demonstrated, there is thus no automatic prohibition on the publication of a judgment in a financial remedy case under the 1973 Act, even if given in private, nor of naming the parties.

The implications of this are profound: whereas in children cases the judicial task, when the issue arises, is to consider whether there should be a relaxation of the automatic restrictions on publication otherwise imposed by the law, in financial remedy cases under the 1973 Act the judicial task, when the issue arises is to consider whether there should be an imposition of restrictions on publication not otherwise imposed by law.

This last point is fundamental, because it is clear law, established by the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, that such restrictions can be imposed only following a judicial ‘balancing exercise’ which has regard to and balances the interests of the parties and the public as protected by Articles 6, 8 and 10 of the Convention, considered in the particular circumstances of the case. This last point is vital, reflecting what Lord Steyn said in In re S at para [17]:

‘an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary (emphases added).’

And there is an important corollary. As Mostyn J has reminded us, it is vital in undertaking this ‘balancing exercise’ that the critical question is correctly framed. As he explained (correctly) in Xanthopoulos v Rakshina [2022] EWFC 30, [2023] 1 FLR 388, para [128]:

‘The fallacy lying at the heart of current practice, which seems to be ingrained, is that the wrong question is invariably asked when it comes to anonymising a judgment … The correct question is not:

“Why is it in the public interest that the parties should be named?”

but rather:

“Why is it in the public interest that the parties should be anonymous?”’

There is one important qualification to this, as explained by Mostyn J in R (Marandi) v Westminster Magistrates' Court [2023] EWHC 587 (Admin), paras [82], [84]:

‘In my judgment, in circumstances where the judge had not heard all the evidence, let alone rendered findings in a judgment, the better course, in order to hold the ring, would have been to have made a temporary RRO, with a specific provision in it for the matter to be reconsidered once judgment had been given: see R v Somerset Health Authority ex p S [1996] C.O.D. 244 per Brooke J; ASG v GSA [2009] EWCA Civ 1574 per Waller LJ at [4]; and XZ v YZ [2022] EWFC 49, [2022] 1 WLR 4365. In the latter case I held that that, to hold the ring, the court could make a temporary RRO, without full evidence and without performing the established exercise of striking a balance between the various rights under the Convention and that such a temporary RRO would endure only until the parties and the court were ready to deal substantively, justly and fairly with the question of whether to make a final order.

… In my judgment, to make a strictly temporary RRO would be appropriate where the court could not be satisfied that it had all the evidence, and was not in the position to foresee all its likely findings, so as to enable it to make a final order.’

The purpose and effect of the rubric

I need to emphasise two preliminary points, which are vital to what follows.

The first is that, unless embodied in an order of the court, a judicial expression of view, a judicial warning, or a judicial statement of what can or cannot be published is a waste of breath and not worth the paper on which, if written, it is recorded: see R v Socialist Worker Printers and Publishers Ltd ex p Attorney-General [1975] QB 637, 646 (Lord Widgery CJ), Attorney-General v Leveller Magazine Ltd [1979] AC 440, 473 (Lord Scarman).

In the context of ancillary relief, consider Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, paras [19]–[22].7 I had been invited by counsel (one of whom I note, in the interests of historical completeness, was a certain Mr Nicholas Mostyn QC) ‘to make abundantly clear to the media’ that the 1926 Act applied to the proceedings before me. I refused to do so, observing (para [21]) that:

‘what I am being invited to do is to give an advisory opinion and to offer advice to the media – advice which it is insinuated will carry the more force because it comes from a judge. The difficulty is that although persons, the media included, may be obliged to obey the orders of a judge, if the judge offers advice they are entitled to accept or reject that advice as they wish, just as they are entitled to accept or reject advice from any other quarter. So, were I to express any views on the matter, and all the more so were I to address the media in the way suggested, not merely would I be stepping outside any proper judicial function, I would not, in fact, be achieving anything of utility to the parties.’

This was followed by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), [2015] 1 FLR 745, paras [27]–[28].

The second, and equally fundamental point is that, if it is to be effective and enforceable, if the need arises, as an order of the court, it must be drafted in the way in which injunctions are usually drafted and, moreover, in terms which are clear, precise and unambiguous. And there must be a penal notice.

Against this background, what are the purpose and effect of the rubric?

The important points for present purposes are that:

(a) The rubric is not an injunction; and accordingly

(b) The rubric ‘works’ – has any legal effect – only in cases where s 12 of the Administration of Justice Act 1960 applies.

I need to elaborate.

For many years, so far as I am aware, the meaning and effect of the rubric attracted neither curiosity nor judicial consideration. I think I am correct in saying that the point first arose, as it happened before me, in Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, and then again Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, when I was asked to make successive modifications to the rubric (the first to allow naming of the local authority, the second to allow naming of certain family members) which I had attached to an earlier judgment reported as X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341. On each occasion as I made clear, I merely assumed, though without deciding the point, that ‘the rubric is binding on anyone who seeks to make use of a judgment to which it is attached’ – though I did not seek to explain how or why: Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, para [12].

Three years later, in 2011, I engaged with the question and sought to provide an answer.

The starting point, as I explained in Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466, para [13], is that:

‘The rubric is not an injunction: see Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. It is not drafted in the way in which injunctions are usually drafted. There is no penal notice.’8

But, I went on, ‘this does not mean that it is unenforceable and of no effect’. I went on to explain why (paras [15]–[16]):

‘15. … the publication of a judgment in a case in the Family Division involving children, is subject to the restrictions in section 12(1)(a) of the Administration of Justice Act 1960. To publish or report such a judgment without judicial approval is therefore a contempt of court irrespective of whether or not it is in a form which also breaches section 97(2) of the Children Act 1989.

16. The rubric is in two parts and serves two distinct functions. The first part (“The judge hereby gives leave for it to be reported”) has the effect, as it were, of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part (“The judgment is being distributed on the strict understanding that …”) makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric. This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in such aphorisms as that you cannot take the benefit without accepting the burden, that you cannot approbate and reprobate and that if a thing comes with conditions attached you take it subject to those conditions.’

Re RB was a case involving an incapacitated adult where I was exercising the inherent jurisdiction. Section 12, therefore, had no application (see para [9]). I had handed down various judgments in private (in chambers), each including in the heading the words ‘In Private’. I had deliberately omitted the rubric. I explained why (para [20]):

‘Since section 12 did not apply, there was no need for me to include the first part of the rubric; and absent the first part there was neither need nor justification for the second part.’

I have to confess that this had not always been my understanding. BAILII shows that in two cases, one reported as Re S (Adult Patient: Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, and the other as HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), [2003] 2 FLR 408, each relating to the social or medical care of an incapacitated adult, my judgment as handed down in private was not merely anonymised but also included the full rubric. That, of course, as I must accept, was an error on my part.

It is convenient to mention also Re X (A Child) (No 2) [2016] EWHC 1668 (Fam), [2017] 2 FLR 70, where I had handed down a judgment in open court. It was suggested that, in error, the rubric had been omitted. I rejected the argument. Having referred to the analysis in Re RB, I said (para [5]):

‘Now none of this has any application to a judgment handed down in public. The rubric in its standard form applies, as a matter of language, only to judgments handed down in private. But there is a more fundamental point in play here. Section 12 (which applies only to reports of “proceedings before [a] court sitting in private”) does not apply to the contents of a judgment handed down in public. Nor, as a quite separate point, does anyone need a judge’s permission to publish or report a judgment given or handed down in public, unless, that is, there is in place, and there was not here, some specific injunctive or other order preventing publication. It will thus be seen that there was no basis for my including the rubric in my judgment.’

(Mis)use of the rubric in financial remedy cases

It follows from this that the rubric has no proper role to play in a financial remedy case where, to repeat, there is, in contrast to a case involving a child, no statutory prohibition on the publication of a judgment handed down in chambers, and, absent any reporting restriction order, nothing to prevent anyone doing so. In financial remedy cases heard in private (except those under Schedule 1 of the Children Act 1989) the standard rubric is completely ineffective to prevent full reporting of the proceedings or of the judgment. It is not worth the paper it is written on. Its continued use in such cases – which is still endemic – is a legal oxymoron.

Absent any statutory prohibition, the first part of the rubric is unnecessary and, if nonetheless included, wholly redundant. For the would-be publisher does not need the permission of the court to publish and can justify publication, and defend a complaint of contempt, without reference to the first part of the rubric. That being so, there is nothing for the second part of the rubric to bite on. Since the would-be publisher does not need the permission of the court gratuitously granted by the first part of the rubric in order to defend a complaint of contempt, he can publish without having to comply with the requirements of the second part of the rubric.

I therefore agree entirely with Mostyn J’s conclusion (Xanthopoulos v Rakshina [2022] EWFC 30, para [119]) that:

‘in a financial remedy case heard in private … the standard rubric is completely ineffective to prevent full reporting of the proceedings or of the judgment.’

There is a further point. Use in this context of the current form of rubric raises the question whether it is appropriate, indeed lawful, to seek to threaten a penalty for contempt in a case where there is in fact no reporting restriction order.

The existing rubric should be abolished in financial remedy cases at the earliest opportunity. It is a brutum fulmen, is thoroughly misleading and is almost certainly unlawful.

Thus the position in relation to financial remedy cases.

I add that, for reasons which have already been explained, the rubric is ineffective in the Court of Protection when, in accordance with current practice, an order has been made at the outset for the case to be heard in public. The present arrangements in the Court of Protection are for this reason incorrect: see Re EM [2022] EWCOP 31, para [43].

The corollary of this, as Mostyn J has correctly held, is that in such cases the court’s objective can be achieved only if the court makes a reporting restriction order following a process in which a judge has undertaken the ‘balancing’ exercise mandated by In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. As Mostyn J put it in Gallagher v Gallagher (No 1) (Reporting Restrictions) [2022] EWFC 52, para [81], and I agree:

‘the standardised anonymisation of judgments is unlawful and … a reporting restriction or anonymisation order can only be made in an individual case where it has been applied for, and awarded, after a full Re S balancing exercise.’

Peel J has very recently made precisely the same point in Tsvetkov v Khayrova [2023] EWFC 130, para [116]:

‘All that said, whether the starting point is as per the long established practice (i.e. non reportability unless the judge orders otherwise) or as per the thesis of Mostyn J (ability to report unless prohibited by the court), if the court is considering whether to permit or prohibit (as the case may be) reporting, it will need to carry out the Re S balancing exercise.’

The template

Correct use of the rubric is not assisted – it is in fact hindered – by the misleading format of the template provided for family court judgments. The template (with its automatic inclusion of a rubric in a single standard and often inappropriate form) is, in truth, a snare and delusion for the unwary.

For family cases the template generates a single form of rubric, making no distinction between children cases and financial remedy cases or between proceedings heard or judgments delivered in private or in public. The unwary can all too easily be lulled into believing that the one form of rubric is appropriate for all family cases when, as we have seen, it is not. As already noted, the rubric can of course be adapted by the judge to fit the circumstances, but as the still endemic misuse of the rubric all too obviously demonstrates this is not a task that can confidently be left any longer to individual judicial initiative.

It is noteworthy that even today, almost 10 years since its creation in 2014, the template does not recognise the existence of the family court. The settings option list presented to a judicial user of the template lists, as the only relevant option, the Family Division of the High Court. A judge sitting in the family court has to adapt the Family Division template (including adapting it to give the family court, rather than a Family Division, neutral citation number).

Moreover, as already noted, the template continues to generate an additional rubric referring to CPR PD 39A para 6.1, even though PD 39A was revoked as long ago as April 2019.

A further problem

An important point which Mostyn J goes on to make is that the fundamental problem about anonymity which he has identified cannot be resolved by the Rules Committees. Primary legislation is required. He has convincingly demonstrated that, absent further primary legislation, there is no power in the Family Procedure Rule Committee to impose such restrictions generally, whether by rule or by practice direction: see Xanthopoulos v Rakshina [2022] EWFC 30, para [140], Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370, [2023] 1 FLR 120, paras [82]–[85], and Augousti v Matharu [2023] EWHC 1900 (Fam), paras [92]–[93]. Nor, it must follow, and as Mostyn J has recognised, can the President do so by issuing guidance. Non-statutory presidential guidance can no more change the law than can a statutory practice direction.

As he said in Gallagher:

‘to create a scheme providing for standardised anonymisation of financial remedy judgments will require primary legislation.’

Where do we go from here?

Neither legislation nor rule changes are required if the immediate problems in relation to the template and the rubric are to be resolved, as they must be.

The template urgently needs to be revised in three respects:

1. Separate templates should be provided for the Family Division and the family court.
2. The additional rubric referring to CPR PD 39A para 6.1 should be removed.
3. Alternative forms of rubric should be provided for the different types of case.

I suggest that the template should offer three alternative forms of rubric.

Alternative 1 (children cases heard in private):

‘This judgment was delivered in private in proceedings heard in private to which the provisions in section 12 of the Administration of Justice Act 1960 [INCLUDE IF THE PROCEEDINGS HAVE NOT YET CONCLUDED and section 97 of the Children Act 1989] apply. 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 and in any report of or commentary on the proceedings **the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

INCLUDE IF APPROPRIATE The judge has made an order dated [date] in accordance with section 97(4) which [summarise its terms]. Reference should be made to that order for its full terms and effect.

INCLUDE IF APPROPRIATE The judge has made a reporting restriction order dated [date] which [summarise its terms]. Reference should be made to that order for its full terms and effect. All persons, including representatives of the media, must ensure that in any published version of the judgment the terms of that order are strictly complied with. Failure to do so will be a contempt of court.’

Alternative 2 (non-children cases heard in private):

‘This judgment was delivered in private in proceedings heard in private to which the provisions in section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989] do not apply. The judge hereby gives permission – if permission is needed – for it to be published.

INCLUDE IF APPROPRIATE The judge has made a reporting restriction order dated [date] which [summarise its terms]. Reference should be made to that order for its full terms and effect. All persons, including representatives of the media, must ensure that in any published version of the judgment the terms of that order are strictly complied with. Failure to do so will be a contempt of court.’

Alternative 3 (judgments delivered in public):

‘This judgment was delivered in public.

EITHER There are no restrictions on publication.

OR, AS APPROPRIATE The judge has made a reporting restriction order dated [date] which [summarise its terms]. Reference should be made to that order for its full terms and effect. All persons, including representatives of the media, must ensure that in any published version of the judgment the terms of that order are strictly complied with. Failure to do so will be a contempt of court.’

No doubt the drafting can be improved.

I must end with a final confession. As I have already acknowledged, my own record in this matter has not been free of error. And the response of some to what I am now saying may be ‘well, if this is all so obvious why did you do nothing about it when you were is a position to act?’ The criticism would be well-merited. Mea maxima culpa.

Sir James Munby, 2 January 2024