X v Y & Anor [2025] EWFC 237 (B)

[2025] EWFC 237 (B)Case No BT23F00223Venue IN THE FAMILY COURT AT BARNET SITTING AT THE ROYAL COURTS OF JUSTICESt Marys CourtRegents Park RoadLondon N3 1EQDate 31 July 2025
Before
Deputy District Judge Hales
Between
XApplicantYRespondentCommissioner of Police for MetropolisIntervenor
The Applicant appeared in person for in personShona Love (instructed by Tuckers) for RespondentLucy Limbrey (instructed by Commissioner of Police) for IntervenorHearing Hearing date: 19 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 31 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National ArchivesDeputy District Judge Hales:Introduction
[1]I am dealing with an application that arises out of a judgment I gave on 28 February 2025 in proceedings under the Family Law Act 1996. The substantive application was for the extension of a Non Molestation order. I refused the application, and in the course of my judgment I made findings in respect of the Applicant’s conduct. In light of the fact that the Applicant is a serving Police Officer, the Respondent invited me to order disclosure of my judgment to the relevant bodies within the Metropolitan Police:(a) so that the impact of those findings upon her professional standing could properly be considered; and(b) so that he could raise a complaint about their dealings with him and their handling of the issues of disclosure in this case, to which I shall refer later.[2]There was insufficient time to determine that application at the conclusion of the hearing. I therefore ordered the parties to provide written submissions. Upon receipt of those submissions, it was clear to me that the Court would, in light of the relevant case law – in particular the judgment of Knowles J in Re Z (Disclosure to Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 - have to consider the intervention of the Metropolitan Police. I invited further submissions on that discrete issue, and in light of those submissions I gave an interim written judgment on 16 April 2025 directing that the Police be served with notice of this hearing and be invited to intervene and make submissions on the matter of disclosure.[3]Subsequent to that judgment, I received submissions from Ms Limbrey of Counsel on behalf of the Police, submissions in response from Ms Love on behalf of the Respondent, and an email from the Applicant in person. There have been some further emails in which the parties have clarified their positions on the matters that I have to determine.[4]An oral hearing took place on 19 June 2025. At this hearing, the Respondent was represented again by Ms Love; Ms Limbrey appeared on behalf of the Police, and the Applicant again represented herself with the assistance of a McKenzie Friend. I heard submissions from all parties and reserved my judgment.

Background

[5]I will not repeat in detail the factual background to the case; suffice to say that it results from a brief relationship between the parties in 2019-20. In August 2023, the Applicant applied for and obtained a without notice Non Molestation order. The Respondent sought to contest the order, but due to a variety of circumstances was not offered a hearing in which to do so until after the without notice order was due to expire. That could have been an end of matters, but in July 2024 the Applicant applied to extend the Non Molestation Order, setting out further allegations against the Respondent. That application was determined before me in February 2025.[6]There has been an element of shifting sand in the Respondent’s position and the extent of relief he seeks from the Court. In her initial oral application before me in February and in her written submissions, Ms Love set out that her client sought permission to disclose “the order and judgment made on 28 February 2025.” However, in supplemental written submissions prepared in response to those of the Met Police, Ms Love indicated that her client’s position had changed and the ambit of disclosure sought had increased significantly to, as she conceded at the hearing, in effect all the papers in the case. She said the Respondent now considers that he requires a greater variety of documents in order to ensure that the entire picture is known both to those investigating the Applicant’s conduct and to those dealing with whatever further action he takes in respect of the Police’s conduct towards him.[7]The following issues arise for determination:a. Should I order disclosure of my judgment of 28 February 2025 to the relevant bodies within the Metropolitan Police(i) so that they can consider whether any issues arise that would affect the Applicant’s professional standing; and(ii) so that the Respondent can address the failings he identifies?b. Should I grant permission to the Respondent to disclose further papers in the case to the Metropolitan Police so that he can utilise it in his complaints in respect of their conduct during this case?c. Should I permit publication of this judgment and/or my judgment of 28 February; and if so:d. Should I anonymise the parties’ personal details?

Findings made

[8]Before I go on to consider the legal background, it is important to be clear about the findings I made about the Applicant. These amount to the following:a. that she knowingly set out matters she knew not to be true in her application form for the extension of the Non Molestation Order, a form that is backed by a Statement of Truth;b. that she lied on oath at a hearing on 30 July 2024 before Recorder Searle by stating that a Police investigation into the Respondent was continuing when she knew that it was not. I specifically found that the Recorder had based his decision to extend the order in the interim on that particular assertion by the Applicant.[9]It is however important to put these findings in context. I also found that the Applicant did have a genuine fear of the Respondent, but that this fear was not objectively justified. I found that the Respondent had not breached the Non Molestation order and had not engaged in acts of harassment. I found, in short, that the Applicant had not proved that “molestation” had taken place, nor that she required the intervention of the Court to protect her. Accordingly, I dismissed the application to extend the order. However, I did not find, as invited to by the Respondent, that the Applicant was acting maliciously.

Disclosure of Police material

[10]Issues also consistently arose during the course of the proceedings in respect of compliance by the Metropolitan Police with orders made by the Court for disclosure of material. This matter came before the Court at a discrete hearing before Deputy District Judge Carson on 12 February 2025 – just two weeks before the trial. At that hearing - at which the Metropolitan Police was represented by different Counsel - the Court made specific orders which would, if complied with, have completed their disclosure.[11]I was concerned, therefore, at the start of the hearing in February to discover not only that the disclosure ordered had not been provided, but also that the Police had, post hearing, made what appeared to be unilateral amendments to the order made by the Judge to vary the ambit of the disclosure that he had ordered. As a result, I was obliged to require an attendance at the second day of the trial on behalf of the Police, and the disclosure was in fact only provided to the Court at lunchtime that day. I made clear to Counsel who attended on behalf of the Metropolitan Police on that occasion that I considered their conduct had not been of as much assistance to the Court as it should have been.

Legal background: disclosure generally

[12]The law in respect of confidentiality of these proceedings has been the subject of some consideration. Counsel for the Respondent drew the court’s attention to FPR R12.73:(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated – (a) where the communication is to– (i) a party; (ii) the legal representative of a party; (iii) a professional legal adviser; (iv) an officer of the service or a Welsh family proceedings officer; (v) the welfare officer; (vi) the Director of Legal Aid Casework (within the meaning of section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012); (vii) an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings; (viii) a professional acting in furtherance of the protection of children; (ix) an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies; (b) where the court gives permission, including as provided for under rule 12.73A; or (c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.(2) Except as provided for under rule 12.73A, nothing in this Chapter permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.(3) Nothing in rule 12.75 and Practice Direction 12G permits the disclosure of an unapproved draft judgment handed down by any court.[13]It is right to say however that Part 12 of the FPR relates to “Proceedings relating to children except parental order proceedings and proceedings for applications in adoption, placement and related proceedings”, and not, therefore, by strict construction to proceedings under the Family Law Act 1996. It is also clear from the judgment of the Court of Appeal in Allan v Clibbery[2002] EWCA Civ 45 - a case that predates the current iteration of the Family Procedure Rules - that a distinction in respect of the rules of confidentiality is to be drawn between proceedings concerning children, financial remedy proceedings, and other proceedings in the family Court including proceedings under the Family Law Act 1996. In her written submissions, Ms Love directed my attention to FPR R10.5: Any hearing relating to an application for an occupation order or a non-molestation order will be in private unless the court directs otherwise. However,as I shall come to below, I consider that there is a difference between proceedings being heard in private, and their remaining confidential.[14]Ms Limbrey for the Police in her written submissions also directed the Court to R12.73 and submits as follows: “No comparable rule to r. 12.73 exists in relation to Family Law Act proceedings. Nonetheless, as stated above, given the fact the hearing was held in private, it is accepted the Court’s permission is required”.[15]Again. I am far from clear that Ms Limbrey is correct in drawing the conclusion that the Court’s permission is required solely on the basis that the hearing took place in private: this is not in accordance with the judgment in Allen v Clibbery. Butler-Sloss P says at para 17 of her judgment: Proceedings in the courts are either held in open court, where the public is entitled to enter and listen or in circumstances in which the public is largely excluded either by rule of court or by practice. This exclusion does not, of itself, have the consequence of a ban on later publication. (emphasis added)[16]It is apparent that there remains a lack of clarity about precisely how and to what extent confidentiality attaches to Family Law Act proceedings held in private. This was addressed in particular by HHJ Reardon in G v S (Family Law Act: Publicity) [2024] EWFC 231, to which I will refer in more detail below. A full review of the law relating to the privacy of Family Law Act proceedings and the confidentiality of documents produced in the course of those proceedings is beyond the ambit of this judgment given that no party is asserting that the Respondent does not require the Court’s permission to disclose the documents he seeks. I note that in Tooley v Tooley [2025] EWFC 81, the District Judge expressed similar observations and took a similar stance.

Disclosure in respect of the Applicant’s conduct

[17]The law in respect of disclosure in circumstances in which the Court has made findings that may impact upon a person’s professional standing is set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76. There have been a number of subsequent cases approving the approach of the Court in Re C, most recently Re Z [2023] EWHC 447. All these cases relate to proceedings concerning children, and therefore several of the factors for the Court to consider are not present in this case. Nevertheless, the general approach that the Court must take is in my judgment identical.[18]Re C sets out ten factors for the Court to take into account: 1. The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor; 2. The welfare and interests of other children generally; 3. The maintenance of confidentiality in children cases; 4. The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of Section 98 is to encourage people to tell the truth in cases concerning children and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. however, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given; 5. The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice; 6. The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor; 7. The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order; 8. The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children; 9. In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations; 10. Any other material disclosure which has already taken place[19]Of the issues set out above, in this matter it seems to me that 1-4 are not engaged; and that 6 and 9 are only of tangential relevance.[20]Ms Love in her written submissions puts her client’s case as follows: the disclosure to the IOPC and MPS of a serving police officer lying on oath and in an application form before the court is overwhelmingly in the public interest in the administration of justice as per factor 5 in Re C. Findings of intentional dishonesty, with the purpose of misleading the court to make an order which places the liberty of the Respondent at stake is a matter of such gravity that it must be relevant to the Applicant’s fitness to perform the trusted role of a police officer.[21]The Applicant (representing herself) has provided written submissions and clarified her position further both in an email sent to the Respondent’s solicitor on 13 June 2025 and during the course of the hearing on 19 June 2025. In her written submissions of 27 March 2025, the Applicant opposes disclosure on the following basis:a. The court has not made any relevant findings and/or was incorrect in reaching the conclusions that it had.b. The disclosure sought was not proportionate and the Court must discriminate between her professional role and her role as a witness in proceedings.c. She had in any event already self-reported the outcome of the proceedings, so the matter was already being dealt with in accordance with the Police’s internal procedures.[22]In her subsequent email – sent after she had seen the submissions made on behalf of the Police – the Applicant put her position to the Respondent’s solicitor as follows: Having reviewed the written submissions provided by the Metropolitan Police Service and your client, I wish to make clear that I have no strong views either for or against the release of the judgment. I believe the appropriate and proportionate course is for the Court to determine the matter on the papers, based on the submissions already provided by all parties… If, having considered the written submissions, the Court determines that the judgment should be released, I will not object. My workplace has already been made aware of the matter, both through previous disclosures from myself and as a result of communication from your client and the Court. The decision as to whether the judgment is released is therefore one for the Court alone.[23]Despite that, and taking into account her situation as a litigant in person and the potential gravity of these issues for her, I was anxious to explore her position at the hearing. Her oral submissions to me were that she would still prefer that I did not grant permission to the Respondent to disclose the documents further, but that in the light of the circumstances she was content to leave the decision to the Court. She remains concerned about the Respondent’s behaviour and that his continued engagement in these proceedings and in any other matter concerning her is intended to harass her further.[24]I should add that Counsel for the Police confirmed that according to her instructions, the Applicant had indeed self-reported the outcome of the proceedings including in particular my finding that she had lied under oath, and had taken all steps professionally required of her. This does her credit.[25]For the Police, Ms Limbrey supports the application for disclosure. She says, quite reasonably, that given the outline of the Court’s findings of which the Police are aware, “the MPS can adopt no position other than to seek disclosure of the judgment in order to explore the matter further.” She sets out in detail the procedure that will be followed by the Police and helpfully directs the Court’s attention to the relevant standards required of serving police officers: the Home Office Guidance: Conduct, Efficiency and Effectiveness: Statutory Guidance on Professional Standards, Performance and Integrity in Policing published on 5 February 2020. Those standards include a requirement to act with honesty and integrity.[26]In respect of the particular finding made against the Applicant, Ms Limbrey submits, “That is a significant finding for the Court to make against any individual, but particularly so a serving police officer. Officers are held to clear and well-known professional standards. A finding of the order previously described is indicative of a police officer potentially breaching the standards of honesty and integrity or engaging in conduct which is liable to bring discredit on the police service (which principle can, when applicable, extend to off-duty conduct).”[27]I have carefully considered the issues that arise in this somewhat extraordinary case. I have reminded myself that I did not find the Applicant to be dishonest in the fear she expressed of the Respondent but that, in furtherance of her belief that she was in danger from the Respondent, she had taken some very “unwise steps”. I expressed my hope that she would be able to reflect on the situation and come to the conclusion that the Respondent did not pose a risk to her.[28]Nevertheless, whilst I did not find that she had behaved maliciously, I agree with Mr Limbrey that my finding, given the Applicant’s professional standing, is significant. Police Officers regularly take the oath in Court. Judges and juries rely upon them. A serving Police Officer should understand the gravity of the oath and the impact of lying under oath on the administration of justice and the public perception of the Police service. That ought to outweigh any personal stake in the outcome of proceedings and should apply regardless of whether the Officer takes the oath in a professional or private capacity. To this extent, the 5th and 7th elements of the test in Re C are very much engaged. Whilst the Applicant has committed no criminal offence, her conduct does fall within the 7th consideration set out above, and the impact of her conduct on the proceedings was considerable. It is not overstating the case to say that by means of the evidence she gave to Recorder Searle, she procured the extension of the Non Molestation Order by deception.[29]Indeed, the Judge himself referred to the consequences during the course of the hearing: in response to a question from the Respondent (who was himself acting in person at that hearing) about the consequences to the Applicant if it were later proven that her evidence had been untrue,

the Judge said in terms:

“[The Applicant] will be in jeopardy because she has told me that was the position, and she is going to tell the judge in February that that was the position”
. She was in Court to hear those words, and did nothing to disabuse the Judge of the reliance he had clearly placed on the oral evidence she had given.[30]She heard similar comments from DDJ Carson at the hearing in February 2025. The transcript records the Judge’s comments thus:
“to lie in court is also a contempt of court and if the matter was brought back to court and particularly as a serving police officer if [the Applicant] was found to have lied that would have very serious implications for her.”
[31]I agree with Ms Love’s submission that the fact that a Non Molestation Order carries with it a power of arrest for breach weighs in favour of disclosure.[32]I have also considered whether, pursuant to the 10th issue raised in the Re C list, the fact of the Applicant already having self-reported my findings should weigh against disclosure. Whilst I have given credit to her for so reporting, in my view that does not of itself tip the balance against authorising the disclosure of my judgment in full. I believe it to be vital that any investigation is conducted with the full “picture” being available. Indeed, as I posited to the Applicant during the hearing, it may in fact be in her best interests for the Police to be appraised of the full tone and context of my judgment.

Disclosure in respect of the conduct of the Metropolitan Police

[33]As a separate but related limb, the Respondent also seeks permission to deploy the judgment in support of complaints he makes about the conduct of the Police towards him both within these proceedings and generally. I have already referred above to the issues that arose in respect of the orders made by the Court for Police disclosure. There are further issues of which the Respondent makes complaint. They are summarised by Ms Love in her written submissions thus:
“The Respondent submits that in his view, there may have been some form of collusion between officers and the Applicant in that he was treated in a way which was disproportionate, and he was subjected to unfair or overly harsh treatment.”
These are serious allegations.[34]The argument is advanced on the basis that the Court is to apply the same legal test for this disclosure despite the purpose being different. Both Re C and Re Z involved circumstances in which it was disclosure was for the purpose of an investigation into the conduct of an individual against whom findings had been made. Ms Love submits that the Re C test applies and that in particular the 5th factor – the administration of justice – weighs in favour of disclosure.[35]The Applicant is understandably neutral on this matter given that she feels it does not directly concern her. On behalf of the Police, Ms Limbrey made clear that, at the time her submissions were prepared, she was not aware of this second purpose of disclosure and was not therefore able to advance arguments. However, the position having been made clear, the Police did not seek to change their position and accordingly she does not object.[36]In Re Z, Knowles J set out in paras 19-22 the structure of the relevant Rules in relation to disclosure; in particular (para 20): The scheme of the current rules is that communication of information relating to children proceedings falls into three categories: a) Communications under Rule 12.73(1)(a) which may be made as a matter of right; b) Communications under rule 12.73(1)(c) and Practice Direction 12G paragraphs 1 and 2, which may be made but are subject to any direction by the Court, including in appropriate circumstances a direction that they should not be made; and c) Other communications, which under 12.73(1)(b) may only be made with the Court’s permission.[37]I am satisfied that the disclosure sought be the Respondent in respect of his complaints about his treatment by the Police also falls within this third paragraph and may only be made with the Court’s permission.[38]I have concluded that the Respondent should have permission to disclose my February judgment to the Metropolitan Police to pursue these complaints. It is in the public interest that such complaints are properly considered, and I am mindful of the fact that I myself expressed misgivings about the Metropolitan Police’s approach to the disclosure orders. To decide otherwise would be to risk those issues not being properly investigated. It would also be wholly artificial to permit disclosure of the material to a regulatory body for one purpose but prohibit it for another.

Conclusion in respect of disclosure of February judgment

[39]I am therefore satisfied that I should grant permission for the disclosure of my judgment and order dated 28 February 2025 to the relevant Police conduct authority for both purposes. The particular method of disclosure has been agreed between the parties and I need not set it out here.

Further disclosure sought by the Respondent

[40]As set out above, in her second set of written submissions, Ms Love widened considerably the ambit of the disclosure sought by the Respondent. She says that at the time of the judgment, he had not had the opportunity fully to consider the ramifications of my judgment and his response. She submits that it is only fair for the Respondent to be able to present a full picture to the Police in support of any further action he may take, and that in order to do so he requires the wider disclosure sought.[41]The Applicant again takes a neutral stance on the basis that these documents will be deployed by the Respondent in support of the second purpose of disclosure rather than the investigation into her conduct.[42]On behalf of the Police, Ms Limbrey, without knowledge of the content of the documents in question, found it hard to express a view save that she was understandably concerned that any person investigating the Applicant’s conduct would have to have the full context of the situation available to them. She also raises a concern about allowing any party to “cherrypick” the release of documents, submitting – and I agree – that the arbiter of what is to be disclosed must be the Court, not a party.[43]I have decided that I will not permit the disclosure of the further list of documents as sought by the Respondent. I reach this conclusion for the following reasons:a. So far as I am aware, there is no indication that those instructed by the Respondent sought to place the Police or the Applicant on notice of this significant change of position. The Court was certainly not aware.b. The extension of disclosure sought by the Respondent is considerable: from my judgment and order to all of the papers in the case at the Respondent’s discretion. I do not consider that there has been the sort of forensic approach and careful consideration of the documents on an item-by-item basis that would be required.c. Whilst I appreciate the neutral stance taken by the Applicant, these documents nevertheless contain a great deal of personal information about her, and the Court would have to be satisfied that it was right to grant permission to the Respondent to disclose that information in furtherance of action against a third party – action that itself might become public.[44]I therefore refuse this part of the application. If in the future any party – including the Police - seeks further disclosure of the papers in this case, they will have to make the appropriate application. I would suggest that such disclosure will have to be properly justified and carefully limited to what is actually required for the particular purpose.

Publication

[45]The Respondent invites the Court to publish both this judgment and the judgment of 28 February. That publication is resisted by the Applicant. The Police take no view on publication but are concerned about the impact on the Applicant if the judgment is not anonymised.[46]The objective for the Family Courts to be transparent has been made clear by the President of the Family Division on a number of occasions. The most recent guidance, dated 19 June 2024, states as follows: 1.1. The starting point is the principle of open justice. It is generally in the public interest for judgments to be published, even where they arise from private proceedings, and even where there is no particular public interest in the individual case / judgment - subject to any countervailing Article 8 issues, which may justify some anonymisation but do not necessarily preclude publication entirely. 3.6 Judges should always consider publishing a judgment in any case where: i. the judgment involves a novel point of law or establishes a legal precedent; or ii. the judge concludes that publication would be in the public interest for a fact specific reason; and iii. a written judgment already exists in publishable form or the judge has already ordered that the judgment be transcribed. Ms Love submits that this case, since it involves a serving Police Officer, will be of particular interest to the public.[47]The Applicant did not specifically address the issue of the publication of my judgment(s) in her written submissions. At the hearing, she stressed the personal and private nature of the proceedings and, as I have said, raised her belief that in pursuing publication, the Respondent is seeking to harass her by other means.[48]Ms Limbrey invited me to delay my decision on publication until the Police had had the opportunity to consider in full my February judgment. I do not consider that anything germane to the issue of publication could arise from that and I am concerned about there being further delay.[49]I have determined that there are no compelling reasons in this case to outweigh the public interest in publication of this judgment. I accept that the circumstances of the case and the nature of the findings I have made against the Applicant do justify publication. However, I limit that publication to this judgment only: I do not consider that the position will be enhanced by publication of my judgment of 28 February.

Anonymisation

[50]The final issue that arises, is whether this judgment should be anonymised. The Guidance sets out that the principle remains that of open justice, but that anonymisation may occur “where specifically justified on the facts of the case”.[51]The Applicant, for understandable reasons, urges me to anonymise any judgment that is published. The personal impact upon her will without question be exacerbated if her name is made public. However, to what extent is that a relevant consideration? Ms Love advances the proposition that, because the Applicant is in a public service position, she has less expectation of anonymity. She referred me to Tooley v Tooley (cited above) but I am not sure that is authority for that.[52]My Limbrey raises concerns about the risk that the public naming of the parties might undermine the Police’s forthcoming investigation into the Applicant’s conduct: in the event that the judgment is published and circulated, it might come to the attention of those charged with conducting the investigation. That in turn might lead them to come to conclusions either way about the Applicant’s conduct before the investigation has properly taken place or hear broader discussion that might influence them.[53]She also referred me to the judgment of HHJ Reardon in G v S (Family Law Act: Publicity) [2024] EWFC 231, a case of particular relevance because it involved, as in this case, Family Law Act proceedings between parties with no children. The Judge considered whether, in the context of the reporting of Family Law Act proceedings, anonymisation was the default position and concluded (para 27):
“in most cases heard in the Family Court or Family Division "the practical starting point… appears to be automatic anonymisation". There is however, as yet, no Court of Appeal authority to resolve this issue.”

The Judge then went on to set out the Court’s approach:

[54]28… the task for the court will be to balance rights to private and family life under ECHR Article 8 against rights to freedom of speech under Article 10. The way in which the balancing exercise is to be conducted was set out in the speech of Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 at paragraph 17:
"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."

The Judge went on to observe:

[55]41: It seems to me therefore that there will be many FLA 1996 cases in which the Article 8 rights of any party wishing to restrain publication are likely to outweigh by some distance the Article 10 rights of the person seeking to publicise the information. It is also likely to be the case that in most scenarios the harm caused by a default position in which there are no restrictions on publicity will be greater than the harm caused if the starting point is that the proceedings are confidential. The worst that is likely to happen with a starting point of confidentiality is that the party seeking publicity faces a delay in telling their story. If the default position is the other way round, there are real risks of significant harm. 42: For that reason I would suggest, albeit tentatively and in the absence of authority, that the starting point should be one of confidentiality in any application under FLA 1996 which involves allegations of domestic abuse or other harm, and that the burden of making the application should lie with the person seeking permission to publicise the information. That is certainly the basis on which these applications are currently dealt with in the Family Court, and the parties are almost invariably anonymised in published judgments.[56]In this case, an additional consideration applies: I have to bear in mind not only the impact upon the Applicant and Respondent of the publication of their personal information, but also the potential impact upon the investigation that is to take place in respect of the Applicant’s conduct. In my judgment, there is substance to the concerns raised by Counsel on behalf of the Police. Irrespective of other considerations, the potential risk to that investigation leads me to conclude that this judgment must be anonymised; to do otherwise would be to risk the entire purpose of this supplemental litigation.

Conclusion

[57]I am aware that this judgment does not draw a line under the fallout of these parties’ relationship. Brief though it was, it has cast a long shadow over their lives and has cost them both a great deal of time, money, and disruption. It has taken up an inordinate amount of Court time. I hope that in time both the Applicant and the Respondent can allow this period of their lives to recede into the distance.