The Astonishing Fate of Scott v Scott (1911-1913)

Sir James Munby was the President of the Family Division from 11 January 2013 to 27 July 2018. Following his retirement, he was a prolific contributor to the Financial Remedies Journal. He died suddenly on 1 January 2026, aged 77. His family have agreed to the publication of this work in the FRJ in light of the expected consideration by the Court of Appeal in November 2026 of the question of secrecy in financial remedy proceedings. The following text is from the preface, and the full text can be found in the attached pdf.

This is a detailed investigation of what is on any view one of the most consequential, if now all too frequently disregarded, cases in family law. It is a much expanded account of some of the matters which I first explored in Some Sunlight Seeps In [2022] FRJ 79. It falls into five parts.

Part A, Scott v Scott and the Royal Commission, is a historical and analytical account of Scott v Scott and of the Royal Commission on Divorce and Matrimonial Causes chaired by Lord Gorell whose work overlapped and was intertwined with it. The story starts in 1858 and ends in 1935. It is followed in Part B by an analysis of precisely what it was that Scott v Scott decided.

Parts C-E, are an attempt to explore and explain why the teaching of Scott v Scott has been largely forgotten and ignored by the family courts over the last half-century. It is organised conceptually around a historical and analytical examination of what, adapting Lord Sumption, I refer to as the desert island syndrome which continues to afflict the family courts – a syndrome Nicholas Mostyn has usefully analysed with characteristic brio as embracing The Family Law Silo, The Cult of Secrecy and The Cult of Anonymity. Part C deals with desert island syndrome, family court exceptionalism and the family law silo. Part D contains a historical and analytical exploration of the cult of secrecy in financial cases. Part E describes from both a historical and contemporary viewpoint the cult of anonymity in financial cases and the currently pressing problem of the use and misuse of the rubric. The tone here is increasingly polemical. Part F contains some parting thoughts.

The reader is entitled to know where, as it were, I am coming from.

For much of my professional career I was not a family lawyer. My first introduction to what we would now call transparency came in 1988, when I was briefed by the Official Solicitor as amicus curiae in Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246. From 1988 until 2000 I was involved as counsel in many of the most important reported transparency cases in the family courts: acting sometimes on behalf of a child, sometimes as amicus curiae but frequently on behalf of newspapers, as, for example, in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211. Only later did I first start dabbling in family law – mostly in the Court of Appeal and House of Lords – and only when appointed a judge in 2000 did I really become what most people would think of as a family lawyer.

The importance of these autobiographical details is that my introduction to transparency as practised in the family courts involved me starting from the principle of open justice and looking into the family justice system, whereas I found that most family lawyers took (and continue to take) the family justice system as their starting point and look out when thinking about transparency.

Re W was important for three reasons. First, it introduced me to the complexities surrounding section 12 of the Administration of Justice Act 1960: matters which I was later to explore as a judge in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, and in A v Ward [2010] EWHC 16, [2010] 1 FLR 1497. Secondly, it introduced me to Scott v Scott, which I was later to explore as a judge in a number of cases, in particular in Clibbery v Allan and another [2001] 2 FLR 819 and in Re Webster (A Child), Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146. Thirdly, and more fundamentally, it alerted me to the fact that the assumptions and beliefs in relation to transparency commonly accepted by family lawyers are not necessarily a sound guide to what the law really is: matters which I was later to explore judicially in Kelly v British Broadcasting Corpn [2001] Fam 59 and in In re A Ward of Court (Wardship: Interview) [2017] EWHC 1022 (Fam), [2017] Fam 369.

In re M and N was likewise important for three reasons. First, it deepened my understanding of the significance of Scott v Scott. Secondly, it introduced me to that great American judge Brandeis J, whose writings I was later to cite in so many judgments. Thirdly, it established that in matters of transparency the interests of the child are not paramount, and that conflicting interests are to be reconciled by a balancing exercise, albeit not articulated at that stage, in the days before the Human Rights Act 1998, by the various Convention rights with which we are now so familiar and which I was subsequently to explore judicially in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, and in many other subsequent judgments.

In In re M and N I had the temerity to argue that ‘The present practice of the courts has been to grant such injunctions routinely and without consideration of the relevant principles … The width of prohibition is also greater than can be necessary, and there is rarely any expressed time limit. The current practice militates against the policy of the legislation and shifts the emphasis against freedom of speech.’ Lord Donaldson of Lymington MR was not unsympathetic: ‘In the absence of statistical information, which is not available to anyone, I am not convinced that this is true, but I recognise and understand the concern of the media.’ Plus ça change.

During the ensuing 35 years I have spent much time thinking and writing (both judicially and non-judicially) about transparency and, especially more recently, about the need for reform – pressing – and about the experience – mixed at best – of reform, that is, both reform unsuccessfully attempted and reform often only partially achieved. But although my thinking has developed and, I hope, matured down the years, it has maintained an essential consistency. Looking back, it can be seen that in many ways the key building blocks were put in place for me by Re W and In re M and N. One major subsequent development, dating from the late 1990s, must however be mentioned: the introduction of the rubric, the use of which in financial remedies case has now become so controversial; something whose purpose, meaning and effect I sought to analyse in Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466, and Re X (A Child) (No 2) [2016] EWHC 1668 (Fam), [2017] 2 FLR 70.

I must acknowledge many debts I owe to that distinguished lawyer and eminent judicial colleague, my friend Nicholas Mostyn. His arguments in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, though unsuccessful, made me think more deeply about the reforms of 2009. Without the spur provided by his great series of judgments starting with BT v CU [2021] EWFC 87, [2022] 1 WLR 1349, and ending with Augousti v Matharu [2023] EWHC 1900 (Fam), I doubt that I would ever have embarked upon this investigation. My indebtedness to his desert island taxonomy I have already acknowledged. And finally I must acknowledge the great assistance he has given me in commenting on successive drafts, which has much improved what I now present though not of course exposing him to responsibility for any remaining deficiencies.