Mr Justice Mostyn's judgment in DL v SL  EWHC 2612 has now been published. The decision illustrates the significant difference of approach between senior members of judiciary to the tension that exists between unconstrained press reporting and the privacy of parties in family proceedings.
Representatives of the media are allowed access to the majority of family court proceedings, albeit many judges impose heavy restrictions on what they are allowed to report, and routinely order the anonymisation of their judgments to prevent the identification of the parties involved in the dispute. Increasingly however, there have been moves towards introducing greater transparency in family proceedings. In particular, Mr Justice Holman has sat in open court in a number of acrimonious disputes, placing no limit on what can be reported by the media.
In the politest of terms, Mr Justice Mostyn has made it clear that he disagrees with this approach: “No-one has greater admiration for the wisdom and skill of Mr Justice Holman than me but with great deference to him I cannot agree with his practice… that every ancillary relief case listed before him should be heard in open court.”
For Mr Justice Mostyn, the benefits of opening private family proceedings up to public scrutiny must be carefully weighed against the litigants' and their families' right to privacy. Whilst recognising the importance of public oversight to ensure the “probity of judges and the veracity of witnesses”, there are some kinds of court business, particularly those involving children, which are, he says, “so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression.”
The issue of unrestricted reporting on family cases raises interesting questions for the rule of law. On the one hand, the principle that justice must be seen to be done demands that courts are open, so that the judiciary can be made accountable for their decisions. On the other hand, the details of the litigants’ personal lives being made public as a result of this openness may lead to an early settlement on unfair terms or otherwise a greater uptake in private dispute resolution which diminishes the development of the common law.
Mr Justice Mostyn's proposed compromise is to make judgments anonymous and apply related restrictions on what the media can report. As he puts it: “Reporting how a case is conducted, and what legal points are raised, in an abstract way is one thing; laying bare the intimate details of the parties' private lives is altogether another.”
With two senior judges of the Family Division taking diametrically opposed approaches, inevitably this issue will have to be considered by the Court of Appeal so that a consistent approach is taken across the Division.