The case of X v C [2022] EWFC 79 dealt with a situation one might not automatically associate with family law – the right to freedom of speech. His Honour Justice Farquhar was asked to consider whether the financial remedies ‘needs’ case before him should have reporting restrictions attached to protect the parties’ seven year old child’s European Convention on Human Rights (ECHR) Article 8 (private life and family) rights.

What are the ECHR Article 8 and 10 rights?

The ECHR in question are as follows:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 has been interpreted broadly by the courts. Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Neither Article 8 or Article 10 rights are absolute, meaning that unlike Article 3 for example, which prohibits torture and “inhuman or degrading treatment or punishment” the courts must conduct a balancing exercise by weighing up the claimant’s ECHR right and, to put it broadly, factors such as the public good, national security, and the independence of the judiciary (to name but a few).

Why did the court decide that the child’s Article 8 rights were greater than the parents’ Article 10 rights?

What is interesting about this case is that neither the husband nor wife were high net worth or famous, situations that most commonly involve anonymity decisions. His Honour Justice Farquhar commented that the mere fact the parties to the proceedings had a child who could be identified was not sufficient justification to anonymise a financial remedy judgment. What did warrant consideration, however, was the presence of highly contentious, ongoing Children Act 1989 proceedings in which both parties had made various allegations against one another. This fact increased the child’s Article 8 rights as they were aware of the dispute and would undoubtedly be adversely affected by any publicity surrounding the case. This risk increased the child’s Article 8 rights being compromised.

In addition to the above, there was an accepted risk that the child’s father may publish an un-anonymised judgment for inappropriate purposes. His Honour Justice Farquhar was satisfied that H had at times been dishonest and was motivated to cause W distress, which would inadvertently cause harm to the child.

What does the decision in X v C mean for parties to Financial Remedies Court proceedings?

His Honour Justice Farquhar stated that proceedings in the Family Court, including the Financial Remedies Court, should remain as open as possible. The Family Court has faced years of criticism regarding closed-door hearings and accusations of ‘secrecy’. In June 2022, The Hon. Mr Justice Mostyn controversially reiterated his opinion in Gallagher v Gallagher (No 1) (Reporting Restrictions) [2022] EWFC 52 that the standard practice of anonymising financial remedy judgments conflicts with Scott v Scott [1913] UKHL 2 and Family Procedure Rules 27.10 and 27.11, and concluded it is unlawful. Instead, an anonymisation order and reporting restrictions can only be made after a formal application has been filed in court and a careful balancing exercise has been undertaken. He confirmed that this was his final opinion on the matter, but he would “leave it to others to determine [if he is] right or wrong”.

Undoubtedly, a higher court will indeed do just that and hopefully clarify the matter for family litigants.

Edwards Family Law is a niche London-based firm that deal with complex, high value and international family law. To find out more about financial dispute resolution, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.