M (A Child), Re

The Court of Appeal will rarely interfere with a first-instance judge’s discretionary decision to publish a judgment following private family proceedings. The appellate question is whether the judge acted outside the generous ambit of reasonable disagreement, including by omitting a relevant factor, giving inadequate weight to a relevant factor, or reaching a plainly wrong conclusion in the balancing exercise. A litigant’s expectation of a private hearing does not create a confident expectation that the judgment will remain private. Where the trial judge has heard the evidence, made findings, considered the competing arguments and given a reasoned decision, the Court of Appeal should respect the judge’s proximity to the case.

In ancillary relief proceedings between Sir Paul McCartney and Miss Mills, Bennett J decided that his judgment and order could be released without anonymisation to law reporters and the press. Miss Mills sought permission to appeal, arguing that matters concerning the child, property names and security arrangements should remain private, that further redaction options should have been offered, and that she had not been warned that the judgment might be published.

The application was renewed before the Court of Appeal. The central issue was whether Bennett J had exercised his discretion to publish the judgment improperly or reached a conclusion with which the appellate court could interfere.

1. Application refused. Thorpe LJ held that Bennett J had reached a discretionary conclusion after carefully considering the competing arguments. The Court of Appeal would not interfere with that conclusion, particularly because the trial judge was much closer to the case and had conducted the lengthy hearing.
2. A litigant may have a confident expectation of a private hearing, but cannot have a confident expectation that the resulting judgment will not be released into the public domain. The existence of policy concerns about privacy and the publication of family judgments was a matter for the executive and Parliament, rather than a basis for the Court of Appeal to alter the law through the present application.
3. Wall LJ treated the matter as a conventional exercise of judicial discretion. Applying the approach in Bellenden (Formerly Sattherthwaite) v Satterthwaite, the appellate court had to consider whether it was arguable that the judge had omitted or inadequately weighed a relevant factor, given inadequate weight to relevant factors, or reached a plainly wrong conclusion in the balancing exercise. None of those grounds was arguable.
4. The judge had power to publish the judgment, heard full argument, gave a reasoned judgment, took no irrelevant matters into account, omitted no relevant matter and reached a conclusion plainly open to him. Any appeal would have had no prospect of success.

• Court of Appeal (Civil Division): Permission to appeal from Bennett J’s decision was refused. The order permitting release of the judgment without anonymisation remained undisturbed.
• Principal Registry of the Family Division: Bennett J ordered that his judgment and order could be released in their entirety to law reporters and the press.