Reference:  EWCA Civ 1588
Court: Court of Appeal, Civil Division
Judge: McFarlane, Sharp and Hickinbottom LJJ
Date of judgment: 17 Oct 2017
Summary: Reporting Restrictions – Court of Appeal – Anonymity Orders – Section 97 Children Act 1989 – Open Justice
David Sherborne (Appellant)
Adam Wolanski KC (Respondent)
Instructing Solicitors: Charles Russell Speechlys for the Appellant; Times Newspapers Ltd for the Second Respondent
R and R, a married couple, divorced. The wife claimed financial provision from the husband under Part III of the Matrimonial Causes Act 1973.
The court subsequently made an interim maintenance order in favour of the wife. The husband challenged the jurisdiction of the English court to make this order whilst he was subject to European Union sanctions.
The husband’s challenge was unsuccessful. The Court of Appeal judgment relating to the challenge was published in an anonymised form pursuant to a reporting restrictions order made by the Court of Appeal.
At the final hearing of the Part III application, the husband applied to extend the reporting restriction order. Moor J dismissed the husband’s application and discharged the Court of Appeal’s original order.
The husband appealed against the dismissal of this order, and applied for permission to appeal in relation to two other aspects of Moor J’s order, on the grounds that: Article 2 of the ECHR was engaged; the judge erred in conducting the balancing exercise between ECHR Articles 8 and 10; the order was internally inconsistent; and the publication of the relevant information lay contrary to s.97 of the Children Act 1989.
(1) Did the judge find that publication of the relevant information would have engaged Article 2?
(2) Did the judge err in his approach to the balancing exercise he conducted with relation to Article 8 and Article 10?
(3) Was the judge’s order internally inconsistent?
(4) Was publication of the relevant information contrary to s.97 of the Children Act 1989?
The appeal was dismissed in relation to the discharge of the Court of Appeal’s order, and permission to appeal was refused in relation to the rest of the order:
(1) There was no basis for an inference that Moor J found Article 2 was engaged and there was no evidential basis which could have supported such a conclusion.
(2) Moor J did not err in his approach to the balancing exercise:
- Though this point was only briefly discussed in Moor J’s judgment, the primary issue raised in the hearing related to Article 2 and so it was understandable that this was the judge’s focus.
- Indeed, the judge correctly gave priority to the importance of the principle of open justice, in an approach which anticipated that mandated in Norman v Norman  EWCA Civ 49.
- This could be seen by taking into account the transcript of the hearing, which demonstrated that the judge was alive to the relevant issues.
- Further, the husband had the opportunity to invite the judge to clarify his reasons and did not do so.
(3) The order was not internally inconsistent: though reporting within the confines of the order would require caution, the order struck the balance where the judge had determined it should be struck.
(4) As the proceedings had concluded, section 97 of the Children Act 1989 was not applicable and so could not be relied upon by the appellant.
This judgment provides further guidance regarding anonymity in the Court of Appeal. Particularly notable is the court’s reliance upon Norman v Norman and the procedural requirements established by that case- it is now clear that in the Court of Appeal the principle of open justice will only be curtailed in exceptional circumstances. McFarlane LJ’s discussion of section 97 of the Children Act 1989 is of assistance in relation to the question of when proceedings under the CA 1989 are deemed to have ended.