XW v XH

In a financial remedy appeal, the starting point is a public hearing under the Civil Procedure Rules. Anonymity and substantial reporting restrictions are exceptional. The parties’ consent cannot by itself displace open justice. The court must first decide whether Article 8 rights are engaged and then conduct the ultimate proportionality balance between Articles 8 and 10. A child’s independent privacy and family-life rights deserve particular weight where publication is likely to cause harm, but they are not an automatic trump card. Substantial anonymisation may nevertheless be ordered where necessary to protect the child while allowing legitimate public scrutiny of the legal issues.

XW applied before the hearing of her substantive financial remedy appeal for reporting restrictions protecting the parties’ son, AB, from jigsaw identification. Baker J had made an anonymisation and redaction order when giving judgment in the Family Division in [2017] EWFC 76, after finding that identification would likely harm AB. That order was not appealed. The husband initially opposed the application but supported it after argument. The Court of Appeal had to decide whether the freestanding application satisfied the stricter public-hearing starting point applicable on appeal, and whether anonymisation and reporting restrictions were justified despite the public interest in reporting the proceedings.

Application granted. The Court of Appeal made the requested anonymisation and reporting restrictions orders.

1. Financial remedy proceedings at first instance are ordinarily heard in private under the Family Procedure Rules 2010, whereas appeals to the Court of Appeal are ordinarily heard in public under the Civil Procedure Rules. Parties are not routinely entitled to anonymity or confidentiality merely because private financial matters are involved. Child-name anonymisation is generally routine, but wider restrictions are exceptional. The approach in Norman v Norman, [2017] EWCA Civ 49, was followed.
2. The court applied the two-stage approach identified in Norman: first, determine whether Article 8 rights are engaged; secondly, conduct the ultimate balancing exercise between Articles 8 and 10. Neither right has automatic precedence. The interests of children likely to be harmed by publication receive particular weight, but do not operate as a trump card. Consent by the parties cannot determine the issue.
3. The application was freestanding. The first-instance order did not bind the Court of Appeal, although close attention was paid to it. The court would not go behind Baker J’s unappealed factual findings, reached after extensive evidence and argument.
4. AB’s independent privacy and family-life rights were engaged. Identification was significantly likely to harm him and disrupt the carefully maintained normality of his life. It was also for his parents to decide when and how he should learn of the implications of his illness. The proposed order was proportionate because it allowed the legal issues and legitimate public interest to be addressed through a public hearing and an anonymised, redacted judgment. The exceptional approach in K v L, [2011] EWCA Civ 550, supported that conclusion.
5. It was unnecessary to decide whether the wife’s family finances and trusts independently justified restrictions, because AB’s interests provided a sufficient basis.

1. Court of Appeal (Civil Division) — Granted the freestanding application and made anonymisation and reporting restrictions orders for the forthcoming substantive appeal.
2. Family Division — Baker J decided the financial remedy proceedings in [2017] EWFC 76 and later gave a reporting restrictions judgment in [2018] EWFC 44. The factual findings underlying the restrictions were not appealed.