T (A Child) (No.2) (Transparency: Publication of the Party’s Names), Re
[2024] EWHC 161 (Fam)
G v S (Family Law Act 1996: publicity)
6 June 2024
[2024] EWFC 231 (B)
Family Court
A couple's fight over a court order led to a debate about whether the details of the case could be made public. The judge decided the case should stay private to protect the involved individuals' privacy, even though there is usually a public interest in court cases. This decision highlights the complexities of balancing privacy and open justice in cases of domestic abuse.
Key Facts
- •Mr. G (applicant) and Ms. S (respondent) were involved in Family Law Act 1996 proceedings concerning non-molestation orders.
- •The proceedings were compromised with no admissions or findings.
- •Mr. G sought permission to publicly discuss the proceedings, while Ms. S opposed it.
- •The case involved allegations of controlling, aggressive, and violent behavior, and a potential pending assault charge against Ms. S.
- •A child, D, lived with the parties during their cohabitation.
- •The central issue was whether the default position regarding publicity in FLA 1996 proceedings is confidentiality or openness.
Legal Principles
Publication of information from private proceedings is not automatically contempt of court unless specifically prohibited by the court or falling under certain statutory exceptions (e.g., relating to children).
Administration of Justice Act 1960, s12
In FLA 1996 proceedings, there's no automatic rule of confidentiality; publication depends on the proceedings' nature, whether they fall under s12 AJA 1960, or if justice would be prejudiced.
Allan v Clibbery [2002] EWCA Civ 45
The implied undertaking of confidentiality doesn't automatically arise in FLA 1996 proceedings merely because the court considers 'all the circumstances'; the degree of compulsion to disclose must be assessed.
Allan v Clibbery [2002] EWCA Civ 45
Balancing Article 8 (right to private and family life) and Article 10 (freedom of speech) rights is crucial when considering publicity restrictions; neither article has precedence.
Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47
In financial remedy proceedings, full and frank disclosure creates an implied undertaking of confidentiality.
Cooper-Hohn v Hohn [2015] 1 FLR 19, Xanthopoulos v Rakshina [2023] 1 FLR 1388
Outcomes
Mr. G's application to publish information about the FLA 1996 proceedings was refused.
The judge concluded that Ms. S's Article 8 rights to privacy outweighed Mr. G's Article 10 rights and the public interest in publication, considering the intimate nature of the disclosed information, the lack of court findings, and the potential for one-sided presentation of facts.
The court tentatively suggested that the default position in FLA 1996 cases involving allegations of domestic abuse should be confidentiality, with the burden on the party seeking publicity to obtain permission.
This approach aims to protect vulnerable applicants and prevent the court system from being overwhelmed by reporting restriction applications.