M (A Child), Re

Bennett J has conducted the contested ancillary relief proceedings between Sir Paul McCartney and Miss Mills. Towards the conclusion he was concerned as to how his judgment should be treated, and accordingly, on 10 March, he sent the parties his judgment to be handed down, together with a redacted version. He invited the parties to make their submissions on the publication of the judgment. The judge himself said in the course of the judgment yesterday:

(Checked to audio; no bundle)

“More particularly, insofar as Beatrice was concerned, there was also sent a further copy of the judgment where paragraphs that were critical of the wife had been shaded, and which could be excised from the judgment to be publicly released. I did this in an endeavour to gauge the parties’ reactions to a redacted copy being made publicly available, with Beatrice particularly in mind. However, as I have said, neither party wishes a redacted copy to be made available.”

That option having been excluded, the parties filed written skeletons containing their submissions as to whether the judgment should be made public, whether the judgment should remain private, or whether a summary of the judgment should be made available to the public. Those written submissions were then expanded orally at a hearing conducted by Bennett J yesterday, which was principally convened to enable him to hand down his judgment.

In the order which he made yesterday morning, paragraph 4 read:

“The judgment dated 17 March 2008 and this order may be released without anonymisation to the law reporters and the press in their entirety.”

Towards the middle of the hearing yesterday I understand that Mr Rosen took over the presentation of Miss Mills’s argument, she being then a litigant in person with Mackenzie friend assistance. At the conclusion of the transcribed hearing we see Mr Rosen seeking permission to appeal paragraph 4 of the order and Bennett J indicating that he was minded to refuse the application, but that arrangements had been made for the application to be renewed to this court today and that, pending that renewal, Miss Mills would be protected by a stay on the order for publication.

So this morning we have received a helpful skeleton argument from Mr Rosen and we have heard him expand that skeleton orally. He says that the judge erred in that, firstly, he should have excluded matters relating to the child Beatrice, including her date of birth, given that there may be trust funds to which she will become entitled on attaining a given age and that the revelation of her date of birth in an ancillary relief judgment, as it were, primes prying people to know when she may acquire her trust interest. That seems to me a completely hopeless submission given that the child’s date of birth is a matter of public record.

Secondly, Mr Rosen says that the names of properties owned by the parties and details of security arrangements should be kept private. That is a factor of materiality but it is a factor which was carefully considered by the judge.

Thirdly, Mr Rosen says that Miss Mills as a litigant in person was only provided with three options. A fourth option should have been offered to her, namely the opportunity of proposing further redactions or different redactions to those that the judge had mooted by his email of 10 March. It seems to me that that is a very unpersuasive submission. It was inevitably evident that if the only question was detail of redaction there was an implied opportunity for Miss Mills to say: “Redaction in principle? Yes. Redaction in detail? I propose the following…” So I cannot accept that that was an option not tender.

Finally, Mr Rosen said she had no expectation until the second day of the contested hearing that the detailed judgment might be put into the public domain. He says that this is a point of importance and may have significant bearing on all litigants in person who come to the court in ancillary relief. As he puts it in his skeleton argument:

“Indeed on all ancillary relief proceedings, where the presumption of privacy is suddenly taken away without warning in the midst of proceedings where certain matters have been raised and the parties have acted in certain ways where otherwise they would not have done or perhaps proceeded at all to contest ancillary relief.”

There is in my judgment no force in that submission. To begin with, although all litigants have a confident expectation of a private hearing, no litigant can have a confident expectation that the resulting judgment will not be released to the public domain. As Bennett J recorded in his judgment, in recent times a number of cases of significance or substance, tried at first instance, have been the subject of public judgment, namely Conran, Al Khatib v Masri and Sorrell. I could add to that the case of Flick, reported as F v F [1995] 2 FLR 45. I mention that only because it is interesting to see that, whilst reported in anonymised form, when cited to Bennett J and considered in the judgment in this case, it is cited and reported as Flick v Flick. So this is but another case in a traceable line of cases tried in private, but in which the judgment is then put into the public domain. If there are policy issues, and undoubtedly there are, given the harsh criticism of the family justice system for conducting its business in private, they are for determination by the executive and by Parliament. The lengthy consultation process initiated by this Government has not led to any conclusion; indeed my understanding is that the Government has now turned its attention to practice in the United States of America. So it is for change to come through that channel and not through pronouncements in this court. If there is a judicial contribution to change, the former President on a number of occasions stressed the opportunity for judges to release judgments into the public domain after private hearings and suggested the utility of that practice.

So in summary, everything that is to be found in the considered judgment of Bennett J is consistent with these evolutions. His judgment is characteristically careful. He has considered the competing arguments advanced by each party with care. He has reached a discretionary conclusion. It is unthinkable that this court would interfere with that discretion, recognising that he is much closer to the heart of this case than this court could ever be. Nor is there any point of principle that I can discern that would possibly justify the grant of permission. For all those reasons I would simply refuse this application.

I agree. In my judgment this is a classic example of the exercise by a judge of a judicial discretion. Bennett J plainly had the discretion to publish his judgment and the only question for this court is whether or not it is arguable that he exercised that discretion inappropriately. It is of course trite law that this court can only interfere with the exercise of a judicial discretion by a judge at first instance, where the decision made by the judge “exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong”.

Those were the well known words of Asquith LJ in the leading case of Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343, 345. They set out the approach which has been followed ever since. There were notably applied to family justice in well known decision of the House of Lords decision in G v G (Minors: Custody Appeal) [1985] 1 WLR. 647. When applied to the present case, the function of this court in my judgment is to review the decision made by the judge and to ask itself whether or not any of the following three questions is arguable:

It is, as my Lord has pointed out, a particular factor of this case that the judge had conducted a lengthy hearing; he had heard the parties; he had made findings of fact. Neither party intends to appeal.

This is a highly unusual case and has generated a great deal of public interest. In these particular circumstances it seems to me, therefore, that the publication of the judgment was pre-eminently a matter for the trial judge and one with which this court cannot possibly interfere. I am, therefore, entirely satisfied that any appeal against Bennett J’s decision would stand no prospect of success and, like my Lord, I would refuse this application.