R v R & Anor

In appeals about reporting restrictions in matrimonial financial-provision proceedings, the ordinary Court of Appeal principles on anonymity apply. Open justice and freedom of expression under Articles 8 and 10 must be balanced, with departure from openness justified only in exceptional circumstances. An appellate court should consider pre-judgment exchanges and the transcript, and should be slow to infer error from an ex tempore judgment’s lack of precision where clarification was not sought. A statutory restriction under Children Act 1989 applies only while the relevant proceedings remain live. An order may permit publication of some material while maintaining an injunction over separately specified information, provided its operation is sufficiently clear.

The parties had divorced in Russia in 2013. Following permission from the English court, the wife pursued financial provision against the husband under Part III of the Matrimonial Causes Act 1973, together with financial provision proceedings under the Children Act 1989.

An earlier Court of Appeal judgment concerning the proceedings had been anonymised under a reporting restrictions order. At the final hearing in July 2016, Moor J dismissed the husband’s application to extend the restrictions and ordered that the earlier Court of Appeal order be discharged after 21 days, subject to further applications. The husband appealed that discharge and sought permission to appeal other publication provisions.

The issues included whether Article 2 rights had been engaged, whether the Children Act 1989 continued to restrict publication, whether the judge had properly balanced Articles 8 and 10, and whether the order was unclear.

The Court of Appeal dismissed the husband’s appeal against discharge of the earlier reporting restrictions order and refused permission to appeal paragraphs 12(b) and 14 of the order below.

1. Article 2. There was no basis to infer that Moor J had found Article 2 rights to be engaged. The evidence was wholly insufficient to support so serious a finding. The appeal therefore proceeded on the basis that Article 2 was not engaged. Had such a finding been made, it would have been inconsistent with the judge’s subsequent ordinary balancing exercise under Articles 8 and 10 in favour of publication.
2. Children Act proceedings. The husband’s argument under s 97 of the Children Act 1989 depended on the proceedings remaining live. Final orders had been made on the outstanding financial issues, no further hearings were taking place or planned, and no applications remained for determination. The proceedings were therefore not continuing and the s 97 argument fell away. The court applied Clayton v Clayton [2006] EWCA Civ 878.
3. Articles 8 and 10 and open justice. The principles governing anonymisation in the Court of Appeal apply equally to matrimonial financial-provision appeals. Norman v Norman [2017] EWCA Civ 49; [2017] 2 FCR 270 confirmed that anonymisation will be very rare and that open justice and the normal principle of openness may be curtailed only in exceptional circumstances. Moor J’s approach was consistent with that principle. The pre-judgment submissions and hearing exchanges showed that he had engaged with the relevant issues and struck the balance in favour of publication.
4. Clarity of the order. The order was not ambiguous. It could permit publication of material concerning the Court of Appeal proceedings while maintaining an injunction over the separately specified information, although publication required care and caution.

• Court of Appeal (Civil Division): dismissed the husband’s appeal against discharge of the earlier reporting restrictions order and refused permission to appeal other provisions.
• High Court of Justice, Family Division: Moor J, in [2016] EWHC 2073 (Fam), dismissed the application to extend reporting restrictions and ordered discharge of the earlier Court of Appeal order after 21 days, subject to further applications.