I recently dealt with an application for a declaration of marital status under Section 55 of the Family Law Act 1986, securing the declaration my client sought. As is often the case at the outcome of his Judgment, the Judge asked me to type up the order for it to be sealed by the Court.
Dutiful as I am, I set about drafting the order the next day when it suddenly struck me: was the hearing that took place the previous day in open court, or was it a private hearing?
I am ashamed to say that not only did I not know the answer, nor could I find the answer anywhere. My gut instinct was that proceedings were in an open court given that declarations bind the world; their purpose is to declare the status of the parties (just as it might be in doubt whether a falling tree in a deserted forest makes a sound, likewise one could ask the philosophical question, whether one can declare something that no one hears).
In the end I took the coward’s way out, drafted it on the basis that it was in open court, but brought it to the Judge’s attention (he was a QC after all) and asked him to correct me if he wanted. He didn’t.
However the question has been gnawing at me ever since.
A little bit of subsequent research shows that the court does not appear to have adopted an universal approach. The case of Solovyev v Solovyeva (which also dealt with a declaration of marital status) Link is clearly recorded as being in open court.
The later case of N v D Link on the other hand on the Bailii website is emblazoned in red with the following warning:
“This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the persons concerned must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”
So much for the court being any help. It also has to be said that we would not necessarily be privy to any earlier hearing which made a private hearing open, or open court private.
What do the rules say? These appear quite clear. An application for declaration of matrimonial status is an application made using part 19 of the Family Procedural Rules 2010. Rule 27.10 seems to give a definitive answer: proceedings to which these rules apply will be held in private except (……) where these rules or any other enactment provide otherwise (….) Link
This would suggest that proceedings for declarations are private. However procedural rules do not and cannot change the substantive law (see for example this well argued article Link)
As a brief aside for anyone wondering since this is my second article in a row where I cast doubt on the provisions of the FPR 2010; I am actually a fan. I like having all our rules in one place; its just that they are not perfect – yet!
So after all the thought that has gone into the matter I am no further forward. If push came to shove, I will cast my lot in with declarations of martial status being held in open court, as that is what my instincts tell me and the case of Solovyev v Solovyeva was heard in front of the President of the Family Division. I would like to think he at least knew what he was doing, and if I am wrong at least I can try and pass some of the blame on to him (and my QC Judge who didn’t correct me when I drafted my order).
However, all comments and counter arguments are warmly welcomed.