Privacy Or Transparency In The Family Courts – Where Are We Now?

The recently reported case of Norman v Norman [2017] EWCA Civ 49 has confirmed the difficulties inherent in applications for privacy to be preserved in the appeal courts. Lord Justice Lewison referred to the 'default position' that the hearing will take place in public, the parties will be named, and the hearing and any consequential judgment may be reported unless there are cogent reasons why the court thinks it right to depart from that position.

Mrs Norman had made various applications in long running financial remedy proceedings that had lasted more than a decade. She was in the process of appealing HHJ Raeside's refusal to set aside the order made in 2005, which contained an agreement that she and her husband had reached in relation to the financial consequences of their divorce. Mrs Norman unsuccessfully argued that Mr Norman had failed to provide full and frank financial disclosure.

As part of the decision to refuse the set aside, the judge also made an order restraining Mrs Norman from making any further application in the proceedings without first obtaining the permission of HHJ Raeside or another named judge who was familiar with the case. Such orders are unusual and reflect the court's concern about the numerous applications that had been made in this case.

Mrs Norman issued her appeal out of time (there is a 21 day window after the date of the original decision) and on her application for an extension of time, the judgment was given in open court and the parties were named. This is standard practice when it comes to an appeal, but Mrs Norman may not have expected it, having secured an order at an earlier appeal hearing (in 2011) restraining any publication of the names, addresses or other details of the parties. As a result of the more recent decision being heard in public, and without reporting restrictions, the case was reported in the press and Mrs Norman became the subject of 'scathing personal criticisms' which were hurtful and distressing. Lady Justice Gloster described what ensued as a 'public shaming'. Mrs Norman made an application for an anonymity order to prevent further details being published in relation to her substantive appeal.

Human Rights - which one prevailed?

In order to determine her application, the court had to balance the relevant competing articles under the Human Rights Act: the right to a fair trial (Article 6); the right to private and family life (Article 8); and freedom of expression (Article 10).

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