So-called "gagging orders" on divorce are again a hot topic thanks to the high profile divorce between Ant McPartlin and Lisa Armstrong.
What is a Gagging Order in a Divorce?
"Gagging Order", also known as 'an injunction', is an order issued by court to restrict the publication or dissemination of information about a subject. Gagging orders can also occur in employment law and used by employers to help prevent business information from being shared.
“Gagging orders” can be sought from the Court, by the parties to a divorce action in an attempt to protect spouses from having their cases reported in the press. If the press and/or the public are to be excluded from an order it will 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
Here we look at whether or not these orders are legal and to what extent are those involved in Court actions protected from possible media attention?
Reasons for seeking a Gagging Order in Scotland
It is possible in Scotland to seek an Order from the Court requiring that any media reports do not contain the names of the spouses involved. A family law client may wish to seek that 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 subject to upset or embarrassment
- There can be concerns that others will identify one or both spouses
- There can be concerns on their part about wider issues; for example, employees or clients who may be concerned about the future viability of a company
There is no automatic entitlement to anonymity in the court arena.
Gagging Orders & Confidentiality in Family Law
The issue of confidentiality in family actions was recently the focus of discussion at Glasgow Sheriff Court.
A wife sought an order in terms of which the court papers 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 legal provision relevant to the media and restricting the media’s ability to report on the case.
Section 11 of the Contempt of Court Act 1981
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.
What happens when the court directs that names should not be published?
In the case referred to above 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.
That decision was later reversed by a different sheriff. The sheriff pointed out that any order must be served on the press. Interestingly, the sheriff highlighted that doing so would draw attention to a case which otherwise would likely escape the attention of the media.
Public Interest vs the Right to Private Life
Orders restricting press ability to report will not be made lightly. The law on this topic is well developed and complex. To put it at its most basic, the decision on whether or not to restrict reporting comes down to a balancing act between the public interest and the right to private life. Article 6 of the European Convention on Human Rights (right to a fair trial), 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.”
Can Divorce proceedings take place behind closed doors?
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”.
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.
Identification of Children in Divorce Proceedings
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  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.
Remember, 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.
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