Financial remedy judgments—to anonymise or not to anonymise?

Financial remedy judgments—to anonymise or not to anonymise?

Family analysis: The decision in X v X concerned the issue of anonymisation of a financial remedy judgment in divorce proceedings which had been widely reported in the press. John Stables, barrister at 5RB, considers the implications of this judgment.

Original news

X v X [2016] EWHC 3512 (Fam)

What issues did this case raise?

Essentially only those issues that are well rehearsed in the field of court reporting of financial remedy proceedings, ie the arguments for and against anonymity.

The husband wished for an anonymised judgment; the wife was neutral about anonymity. The husband’s and children’s rights under Article 8 ECHR needed to be balanced against the Article 10 rights of the media and the public. The task before the court was therefore one of carrying out the well-known analysis set out in Re S (a child) (identification: restriction on publication) [2004] UKHL 47, [2004] 4 All ER 683 mindful of the facts of the case and the ‘particular weight’ given to the Article 8 interests of minors.

What are the practical implications of this case?

So far as there is a practical implication to draw from the case it does not concern the law at issue.

In my view the practical implication of the case is the potential importance of media behaviour in the evidential background to these sorts of decisions. And more specifically, the importance of such behaviour in ancillary relief proceedings—in which the interests of children will so often figure, directly and indirectly—where there has been previous reporting.

In reaching his view ‘that the balance comes down firmly in favour of the present anonymity (“X v X”) being maintained’ the judge appears to have given particular weight to evidence submitted of the couple’s teenage children having apparently been humiliated and upset by the behaviour of journalists who had covered the story. Of course, because there had been prior, named coverage of the fact of the divorce and of the fact of the proceedings, that will have been unsettling in itself, however the journalists might have conducted themselves. But it is reasonable to think that the less intrusive the attempts at information gathering, the less the scales will be tipped in that respect towards a decision to anonymise, and that that point could in some cases be significant to the outcome.

To what extent is the judgment helpful in clarifying the law in this area?

This is in many respects a routine case. It does not really clarify the law at all. It does, though, highlight yet again that the prospects of success in arguing for anonymity are as much a matter of which judge is hearing the case as what the facts are. It is hardly a secret that Family Court judges differ on the issue.

What are the implications for practitioners? What will they need to be mindful of when advising in this area? Any best practice tips?

Perhaps the only ‘tip’ that might emerge from this judgment is that practitioners representing the media might do well to consider making broad arguments in favour of transparency, including by reference to the position in respect of parties’ anonymity in other types of proceedings.

The weight of authority in financial remedy cases is in favour of anonymity and/or confidentiality in respect of financial matters. If that is to change over time—recognising of course that the facts of any particular case will ultimately be decisive—the Family Court will need to be confronted with the anomalies of:

  • publication of such information usually being suppressed in financial remedy proceedings, but not in other types of case where significant detail of, for example, income, assets and debt is required to be put in evidence, and
  • that financial remedies appeals are held in open court

Practitioners would also be well advised to prepare argument in respect of the Judicial Proceedings (Regulation of Reports) Act 1926 (JP(RR)A 1926) which, although not referred to in this judgment, is regularly prayed in aid of restrictions on publication of matters aired in ancillary relief proceedings and was relied on to one degree or another in all the authorities cited in this judgment as favouring anonymity in this case. It is not at all clear that JP(RR)A 1926 was intended to protect parties at all, rather its purpose is to ‘protect’ the public from the publication of detail ‘injurious’ to it.

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

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