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In the name of justice

21 January 19

Family law briefing: especially in family law cases, clients may seek to have their anonymity protected, but there are various rules – and other considerations – to be borne in mind for that to happen

by Amanda Masson

There was a time not so long ago when so-called “gagging orders” were a hot topic. More normally the domain of celebrity cases, such orders were sought where the usual reporting restrictions around controversial or public interest cases were thought to be insufficient to protect the parties to an action.

The legal systems of both Scotland and England recognise the balance between public interest and the need to preserve anonymity in certain situations, though the law in England is arguably better developed than that in Scotland. This article will explore the Scottish position insofar as it relates to family law, exploring how and to what extent litigants in family actions are protected from possible media attention.

A family law client may wish to seek anonymity for a variety of reasons. She or he may be a public figure who seeks privacy lest there be intrusion into their private life. There may be a concern that children of the marriage will be identified, and thereby subject to upset or embarrassment. There may be concern that third parties will identify one or both parties to the action, which could cause alarm or concern on their part depending on the nature of the information revealed: for example, employees or clients who may be concerned about the future viability of a company. 

It is important to ascertain exactly what the client’s concern is, and how best to approach the issue, since there is no automatic entitlement to anonymity in the court arena. 

Order for the other side?

The issue of confidentiality in family actions was recently the focus of discussion at Glasgow Sheriff Court. 

In an action of divorce and financial provision, the pursuer wife sought an order in terms of which the court papers, including the pleadings and interlocutors, would be anonymised to avoid the parties’ names being in the public domain. 

Interestingly, she maintained that she sought anonymity in the interests of the defender, who albeit not a “celebrity” or public figure, had a relatively high-profile career. The pursuer argued that in seeking anonymity she sought to avoid investigation of alleged conduct on the part of the defender by the defender’s professional body. She also argued that she wished to avoid embarrassment to the parties’ adult children as well as to herself and her husband.

The wife effectively sought to impose a reporting restriction by invoking a statutory provision relevant to the media and restricting the media’s ability to report on the case. 

Ground rules

Section 11 of the Contempt of Court Act 1981 relates to matters exempted from disclosure in court. It provides that: “In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

This provision clearly enables the court to direct that a name or other piece of information will not be published, with the court having the discretion to determine the necessity or otherwise of the stated rationale behind seeking to have particular details withheld.

At a pre-service hearing the sheriff directed that no one should publish or reveal the names of the parties to the proceedings, nor publish any information which would be likely to lead to the identification of the parties, ordering that current and future court documents be amended by deleting the parties’ names and substituting their initials. 

The defender’s position was that the order was unnecessary though no firm view was held by the defender as to whether the order ought to remain in place.

The order was recalled at the hearing after service. The presiding sheriff pointed out that the agents had not complied with chapter 48 of the Ordinary Cause Rules 1993; in particular, the order had not been served on the press. The sheriff highlighted that, in doing so, attention would be drawn to a case which otherwise would likely escape the attention of the media. 

Open justice

Orders restricting press ability to report will not be made lightly. As the Lord President explains in his Briefing Note on Statutory Reporting and Privileges, February 2013: “the principle of open justice has a long pedigree in Scots law, as reflected by the Enactment of the Evidence Act 1686 and the Court of Session Act 1693… the open justice principle is also part of the common law”. 

Exceptions to the open justice principle are expressly allowed by article 6 of the European Convention on Human Rights (right to a fair trial), which provides: “Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Notwithstanding this, many of the restrictions contained in statutory provisions allow for proceedings to be held in chambers, thus prohibiting press access and the opportunity for reporting. 

Permitted exceptions

It remains open to solicitors to move the court to hear a particular case or part of proceedings in a closed court or in chambers without seeking a formal order for papers relating to the case to be anonymised. Exceptions to the open justice principle can be made “in special circumstances to allow the court to conduct its proceedings behind closed doors where the interests of justice require this to be done” (Sloan v B 1991 SC 412). 

Again, the prohibition must be in the interests of justice, rather than in the interests of serving the personal preference of a party to the action. 

Family lawyers should also bear in mind that there may be other provisions and remedies which if invoked would achieve a particular aim.

Section 46(1) of the Children and Young Persons (Scotland) Act 1937 enables the court to direct that newspaper reports of proceedings must not reveal the name or other details which could lead to the identification of a person under the age of 17 who is “concerned in the proceedings”, such as a child(ren) of a marriage under scrutiny in divorce proceedings. Indeed, this provision was invoked in the case PH v JK or H [2010] CSOH 32, a child relocation case which attracted media attention due to the unusual nature of the orders made.

The identity of children involved in the children’s hearing system is protected in terms of s 182 of the Children’s Hearings (Scotland) Act 2011 (which repealed s 44 of the Children (Scotland) Act 1995).

It remains open to parties to seek interdict against publication of details pertaining to their case. If the case involves a cross-border element, it is important to remember that an interim injunction granted in England does not automatically apply in Scotland, since it is not a final order. Fresh or ancillary proceedings reflecting the wording of the interim injunction would require to be raised. 

Drawing attention?

A final note on process. If an order seeking to restrict reporting is sought, it is essential to comply with the requirements set out in chapter 48 of the OCR 1993. These provisions require, inter alia, that the sheriff shall specify in the interim order why she or he is considering making an order, that an interested party who would be directly affected by the making of an order shall have an opportunity to make representations to the sheriff before an order is made, and that where the court makes an order the sheriff clerk shall immediately send a copy of the order to any interested person, and arrange for the publication of the making of the order on the Scottish Courts & Tribunals website. Parties may wish to consider whether the cost and attention occasioned by compliance with these rules is justified by the end result sought.

If the press and/or the public are to be excluded from family law litigation for the protection of private life, it shall be only to the extent necessary and in unusual circumstances in which publicity would prejudice the interests of justice, not simply because the parties feel rather embarrassed about airing their dirty linen in public. While the Scottish legal system can afford anonymity to litigants, the circumstances in which that can be achieved require careful consideration and rational justification. 

Amanda Masson, partner and head of Family Law, Harper Macleod LLP

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