Private law rights of children: Part 1

20160418_164836-e1544888626602.jpgA child’s ‘views’ in the family courts


How many children know they have rights to ‘express their views freely’ in court proceedings – especially in family courts – where a court is making a decision which affects a child? And if they don’t know, how are they going to find out? Even if they do know about their rights, how do children get their views before the judge? What are the steps they must take to get what they want to say before the court?


This first post in a series of three will say a little bit about what rights there are for children. Part 2 will look at procedure for how rights – views – are dealt with as a court process. Part 3 will look at expression of a child’s views, wishes and feelings in practice, and what court procedure rules actually permits.


I don’t know what is taught about children’s rights in individual schools. As a family lawyer I have a good idea that children who are the subject of proceedings are told very little about what their rights are. Few judges, I suspect, go on the front foot to comply with the law and to find out themselves what a child’s views are. And I fear, many specialist family lawyers are not sufficiently versed in the intricacies of children law to know what they need to do to help children to apply in private law (Children Act 1989 (CA 1989) Pt 2) proceedings; or to be sure that a child talks to a judge when it is appropriate.


Children and Children Act 1989 Pt 2 proceedings


Children’s rights are likely to arise in private children proceedings (Children Act 1989 (CA 1989) Pt 2 and especially s 8). This will arise in three sets of circumstance explained in this article:


  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); and as did CT in Re CT (below));
  • A child who wants to join in existing proceedings (with or without representation: eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P); or within existing CA 1989 Pt 2 proceedings (eg between the child’s parents), for the child to proceed alone or represented by the child’s own lawyer (eg Mabon v Mabon (below));
  • A child whose instructions to the child’s instructed solicitor conflict with those of the child’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (on analogy with FPR 2010 r 16.29(2)(a) for Pt 4 proceedings)


This article does not deal with CA 1989 Pt 4 proceedings (care and supervision orders; also called ‘specified proceedings’ (CA 1989 s 41(6)). There a children’s guardian and a solicitor for the child are appointed by the court (CA 1989 s 41(2) and (3)).


Many experienced children lawyers have difficulty in unravelling what type of children proceedings are involved in individual cases (eg Black LJ (now Lady Black in the Supreme Court) in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027: see Preface to my Children’s Views and Evidence by Bloomsbury Professional, 2017  (and see Chapter 6)).


A child’s ‘views to be expressed freely’


United Nations Convention on the Rights of the Child 1989 Art 12, as relevant to a child’s views on a case, says:


1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.


Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, on a child’s views, echoes the position on ‘views’: ‘1 Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.’


In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (the child was seven) Ryder LJ identified CA 1989 s 1(3)(a) as a ‘fundamental principle’ English law: that is ‘the ascertainable wishes and feelings of the child concerned’ in a case must be considered by a court. This provision said Ryder LJ is ‘mandatory’; though the court has a choice (ie a ‘discretion’) on the extent to which views are taken into account (see [38]).




A child is therefore entitled to ‘participate’ in the proceedings which are about her:


[44] … The law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) CA 1989 like that in article 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.


A child must have his or her views heard, but not necessarily followed. This was explained by Lady Hale of an eight-year old child in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 [2007] 1 FLR 961 where she said of D, now aged eight, who did not want to go back to Romania (as described by Lady Hale at [20]-[22]), how should his views be considered:


[57]… As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. There is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.


A principle of ‘universal application’


To ensure every child participates in proceedings about that child the court must ask: how is the child to be heard? In Isobel’s case – says the UN – she is entitled to ‘express her views’, but how does she go about getting her views heard by the judge? Ryder LJ helpfully described hearing the child’s views as a ‘fundamental principle of procedure’; but how does that principle operate in practice? In Re D [2006] (above) Lady Hale said:


[59] … Children should be heard far more frequently [in Re D it was in Hague proceedings]. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child’s own or give them very little independent weight….


Lady Hale considered the ‘three possible ways’ (at [60]) of hearing a child’s views:


  • An interview with a CAFCASS officer, who is not only skilled and experienced in talking with children
  • The judge seeing the child
  • Solicitor representation.


Of the last Lady Hale said (at [60]):


… Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.


So, imagine a child aged twelve: Clara. She does not agree in different ways with each of her parents. She does not want to live with her father as is being proposed by him to the court. A court welfare officer is ambivalent as to whether she should stay with her mother or her father. Clara says she wants to live, and spend more time, with her mother. She is content to see her father. On the basis of what Lady Hale says she should be separately represented.


Part 2 will consider the child who knows of his or her rights, and what she – Clara – does about claiming them. Part 3 will look at what practical arrangements are made for children and how these fit with the Convention and Charter expression of the rights.


Release of hearings documents in family proceedings: Part 2


Release of hearings documents: general principles


The first of these two articles  considered the recent Supreme Court decision of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019). On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998. However, it confirmed that, as the Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings, including – plainly – family proceedings under Family Procedure Rules 2010 (FPR 2010). As with all other civil proceedings this is subject to the exceptions (summarised in [46]) where the court will order a private hearing (see eg CPR 1998 r 39.2(3) and Administration of Justice Act 1960 s 12(1))).


The rule in question in Cape Intermediate v Dring is CPR 1998 r 5.4C which as relevant here says (under the heading ‘Supply of documents to a non-party from court records’):
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.


So how does all this impact specifically on family proceedings? Part 1 explained the extent to which the case affects release of court material to non-parties. This article considers to what extent any rule, in FPR 2010, can override the common law principles which are addressed in Cape Intermediate v Dring apply to family proceedings? Can these common law principles be overlaid by any rule which applies to family proceedings?


Rule-making powers and the common law


As explained in Part 1, and – as the Supreme Court makes clear – its decision is very much influenced by the Court of Appeal decision in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster). Lest there be any doubt here, in Guardian v Westminster, Toulson LJ, who gave the lead judgment, explained the part of the common law and open justice as follows:


[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.


As Toulson LJ says, the common law is subject only to ‘statutory provision’; and, subject to that, the courts have jurisdiction as to how – in this case – the open justice principle should be applied.


The question which must be answered here is the lawfulness of restrictions – such as they are – in family proceedings in the existing FPR 2010 r 29.12 (set out in full below). After Cape Intermediate v Dring, especially, can the rule be said represent the law at all? Does it prevent release of documents to non-parties where application is made to the court?


Release of court material to non-parties in family proceedings


The nearest FPR 2010 get to dealing with release of documents to non-parties is, as mentioned, is at r 29.12(1). Of release to ‘any person’ (ie including non-parties) of any document filed in family courts, FPR 2010 r 29.12(1) says:


(1) … No document or copy of a document filed or lodged in the court office shall be pen to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without permission.


So, according to the rules the court the court can give ‘permission’.


In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J took on this provision head on and said what he thought it meant. Dealing with release to non-parties – in this case ‘the press’ he asserted: ‘[13] … Further the press are not allowed any access to documents whatsoever – see FPR 29.12.’


Many readers – lawyer and non-party alike – will treat this as a statement of the law (see eg Magrath et al[1]). This always was doubtful; and any way it is not what r 29.12(1) actually says. And if Mostyn J’s comment is what the law said, it is made the more unlikely in the light of the definition of the common law by the Court of Appeal and the Supreme Court in Cape Intermediate v Dring.

Further Mostyn J’s statement at [13] (above) is not part of what he was asked to decide (the ratio decidendi) of the case. He had earlier explained what this was:


[5] All I am being asked to decide today is whether [an] existing order, which restricts the reporting of the proceedings, should be lifted, or modified,… It is highly important that I should exercise my powers very carefully and cautiously so as not to pre-empt [the trial judge’s] decision about publication, anonymisation or redaction of his judgment (italics added).


Nothing is said about a decision on non-party release of documents. This would be for the judge who tries the case. Mostyn J’s comments on r 29.12 are incidental (obiter) to what he had to decide, and cannot form part of the law which the rest of us are required to follow. And insofar as they explain the meaning of r 29.12, they must go on to deal with the conflict between the common law and the rule.


Family Procedure Rules 2010 r 29.12 as law


But let us say Mostyn J was correct in his obiter comment on what r 29.12(1) means. If that is not in accordance with primary law (statute or common law) where does that leave its lawfulness? A rule does not represent the law save where it summarises the law. CPR 1998 r 39.2(3) provides a good example of a rule which attempts to summarise the law. There it is the list of civil proceedings which may be heard in private (and which is entirely apt to this discussion).


A rule regulates the way the law is operated, as explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75:


[8] … The CPR (in that case CPR 1998 r 52.17), being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628….


A rule cannon change statute or common law. Lady Hale makes this point in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and in Dring (see below)) at [27] ‘[Rules cannot] change the substantive law unless expressly permitted so to do by statute’.


But do rule makers have any powers to change primary law? They can only do so – possibly: even that is not constitutionally entirely clear – if Parliament says so. Courts Act 2003 ss 75 and 76 define the terms of reference – delegated powers – of family proceedings rule makers (ie Family Procedure Rules Committee). To a very limited extent that committee can ‘modify’ certain legal principles.


Nothing is said in Courts Act 2003 about it being able to alter the common law. It is significant that still in 2019 a family proceedings case (nullity, now under Matrimonial Causes Act 1973) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 – is treated by all common law courts as determinative of open justice principles over 100 years later. Rule-makers under Courts Act 2003 or otherwise have no power to change that.


Clibbery v Allan


The common law conflict with Mostyn J’s assertion of what r 29.12 said to mean can be easily illustrated by Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 which predates FPR 2010, but which those rules cannot change. The case is very much still good law as Mostyn J himself makes clear (see his citations at [7]-[11]) in Appleton v Gallagher. It concerned proceedings where a circuit judge had refused to make an occupation order injunction (under Family Law Act 1996 Pt 4) on Ms Clibbery’s application. After the hearing she passed some of the documents in the case to the Daily Mail. Mr Allan asked for a restraint injunction to prevent publication by Ms Clibbery or the newspaper.


The injunction was granted on an interim basis, but refused by Munby J on the return date (Clibbery v Allan [2001] 2 FLR 819). Much of the judgement in the Court of Appeal turned on the extent to which proceedings such as these (under Pt 4 of the 1996 Act) were private, and to what extent confidentiality of documents therefore applied.


The issue for the Court of Appeal was: were the proceedings under Family Law Act 1996 Pt 4 in ‘private’ (as they defined it); and if they were, could there be subsequent publication or other release of documents, as Ms Clibbery had done. Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keene LJJ agreed) held that publication in this way – that is release of the documents in the case by Ms Clibbery, was permitted. Mr Allan’s injunction was discharged.


Thus, the common law now stands, on release of court documents in family proceedings such as this. Clibbery v Allan directly contradicts what was asserted by Mostyn J in Appleton; and there is no statute law which says rule-makers can do this (if Mostyn J is correct that they have). Each case must be decided on its facts if a non-party applies for release; or if a party seeks to release.


Cape Intermediate v Dring and common law courts


Cape Intermediate v Dring applies to all courts covered by the common law (includes all family courts). There may be more exceptions in family courts (see Dring at [46]: eg for children proceedings and ‘privacy interests’; and see eg Administration of Justice Act 1960 s 12(1)). At [41] the case stresses that it applies to all ‘courts and tribunals’ and that ‘the extent of any access permitted by the court’s rules is not determinative’ – that is, it is not the end of the story. The question is: how the jurisdiction to release documents in a particular case – any case – should be exercised.


Each case (family proceedings or otherwise), where a non-party applies – eg media; other researcher; interested charity or other group etc – must be considered on its individual facts. If the rules do indeed say something else, this cannot be ‘determinative’ of the issue of what documents can be released. Clibbery v Allan and Cape Intermediate v Dring explains what documents can be released from family proceedings; subject always to statutory (such as s 12(1) (above)) and to common law principles on privacy (best summarised in CPR 1998 r 39.2(3)).

[1] Need to make reference to Transparency book, which is not to hand as I write).

Can the Family Court be trusted with the law?…


Notice and a court’s own initiative order


In a lawful and in-time appeal in family proceedings (Family Procedure Rules 2010 (FPR 2010 Pt 30) from a deputy district judge in the Family Court (venue to remain anonymous for present) to a circuit judge, the judge dealing with the appeal has ordered as follows:


… that unless the Appellant [AB] complies with paragraph 3 of the order of 13th June 2019 [to obtain a transcript of the hearing appealed from] by no later than 4.00 pm on 8th August 2019 her request for permission to appeal shall stand struck out without further order and the hearing on 12th August 2019 shall be vacated.


The appeal is by a former wife (AB), who acts in person. She had representation at the hearing below, provided by the Bar pro bono unit (now called ‘Advocate’). The husband is represented by solicitors and a barrister.


The order is dated 31 July 2019. As quoted above, is it the extent of what it says. No more is said by the order of the matters referred to in the remainder of this note. It was received by AB on Saturday 3 August (five working days before the hearing of her appeal).


The law and ‘own initiative’ orders: Family Procedure Rules 2010 r 4.3


What of the law on all this, which the court and the circuit judge must apply? First FPR 2010 r 4.3 (as relevant here) says:


4.3 Court’s power to make an order of its own initiative

… (4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) –

(a) a party affected by the order may apply to have it set aside, varied or stayed; and

(b) the order must contain a statement of the right to make such an application.


These provisions should not come as a surprise to anyone. CPR 1998 r 3.3(4)-(6) is in exactly the same terms as the passage from FPR 2010 r 4.3 cited above. Any party who is told by a judge to do something – an ‘own initiative order’ – without having the opportunity to respond to the court, must be given a chance to do so. And that party – the main point of this note – must be told of the law which gives her or him ‘the right to make such application’ (r 4.3(5)(b)).


Powers of the appellate court; law and the grounds of appeal


The appellate court – as here – can strike out an appeal (FPR 2010 r 30.10(1)(a)) and for ‘compelling reason’ (FPR 2010 r 30.10(2)). No reasons – ‘compelling’ or otherwise – have been stated for the judge’s order in AB’s case, save as above. What is ‘compelling’ about striking out an appeal against an order where, with judge’s reading time included, the court has allowed one hour for the whole of the permission to appeal hearing, and for the appeal if permission is granted. Nothing is said about notice in r 30.10(1)(a); but is likely that basic fair trail (European Convention 1950 Art 6(1)) principles would require the courts to proceed under r 30.10(1) in the same way as is required by r 4.3(5).


For reading alone, before he gets to the transcript, the judge has 600 pages of the husband’s documents (which the deputy district judge allowed to be filed); thirty pages and more of skeleton arguments; ten case law authorities from the husband, and six from the wife (three from the House of Lords or Supreme Court: Piglowska v Piglowski [1999] UKHL 27, [1999] 1 WLR 1360 [1999] 2 FLR 763; White v White [2001] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 and Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972). When I was provided with the bundles on the day before the hearing it took me most of three hours properly to read them; and when I have the husband’s skeleton argument a short time before the hearing with case law authorities, it took me most of an hour to skim through them. The judge hopes to read all that, plus the appeal notice and skeleton arguments, and hear permission to appeal, and the appeal as well in one hour. Justice cannot be done in that way.


As the grounds of appeal makes clear this appeal – as with most – turns on issues of law. A summary of the deputy district judge’s short judgment has been agreed. The appeal is against the ‘decision’ of the court below (r 30.12(1)). In a case like this a transcript is likely to add little (save expense to a financially stretched appellant). And it will only extend the judge’s reading time still further. If permission is granted and a transcript required a conditional permission can be ordered providing that the transcript be obtained.


The court has been told that not enough time has been allowed.


Family Court: acting unlawfully?


The unrepresented wife does not know the law. The court and the lawyers should do so. Yet in AB’s case none of (1) the husband’s lawyers (who should tell the court where the court appears to have got the law wrong); (2) the circuit judge who made the order under FPR 2010 r 4.3 (or without ‘compelling’ reason under r 30.10(1)(a)); or (3) the court office – none of these have ensured that the basic notice principles of r 4.3(5)(b) are complied with. And if the appeal is struck out, it will surely have been disposed of unlawfully, and contrary to principles in r 4.3(5)(b) which guarantee a fair trial in European Convention 1950 Art 6(1)?


How often are rules like this – the same rule in CPR 1998 r 3.3(5)(b) has been in operation for over 20 years – being ignored by courts and lawyers where parties are unrepresented; or even where they are represented? Failure to comply with basic protections of a fair trial clearly set out in the rules (FPR 2010 r 4.3(5)(b)) might be seen as bullying by the Family Court or the judges. And as an aside, it is worth noting that pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 both parties are likely to have been eligible for legal aid on the basis of their means and on the merit of a matrimonial financial relief case.

Release of hearings documents and open justice in the Supreme Court

20160419_173301Access by non-parties to court documents


The issues in the ‘important case’ of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) (Cape Intermediate v Dring) were summarised by Lady Hale (who gave the judgment of Court consisting of Lord Briggs, Lady Arden and Lords Kitchen and Sales) at [15] as:


  • What is the extent of Civil Procedure Rules 1998 (CPR 1998) r 5.4C(2) (supply of documents to a non-party from court records: see commentary on this rule and the case in the Court of Appeal in Family Court Practice 2019 at 3.2016)? Does the rule ‘give the court power to order access to all documents which have been filed, lodged or held at court’; or is it more limited, as held by the Court of Appeal in [2018] EWCA Civ 1795 (31 July 2018).
  • Is access to court documents governed solely by the CPR 1998, save in exceptional circumstances, as the appellant (Cape Intermediate) argues? Or does the court have an inherent power to order access separate from the rules?
  • If there is such a power, how far does it extend and how should it be exercised?


The Supreme Court upheld the decision of the Court of Appeal that, for good reason, the court can order release to non-parties of certain court material, in its inherent jurisdiction. In so doing the Court sustained the open justice principle as defined by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster)). The background to the issues in this case were looked at in the ICLR blog at ‘Release of family courts hearing documents’; and Cape Intermediate v Dring in the Court of Appeal was reviewed fully in a series of articles entitled ‘Court documents: Part 1, Part 2, Part 3 and Part 4’.


Cape Intermediate and the family lawyer


On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998 (ie not to family proceedings: CPR 1998 r 2.1(2)). But as the Supreme Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). And this plainly includes proceedings under Family Procedure Rules 2010 (FPR 2010) and in all family courts, subject to the exceptions (see in [46]) in line with where the court will order private hearing (see CPR 1998 r 39.2(3), and considered later in this article).


The Supreme Court decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster (successful disclosure of criminal proceedings documents to The Guardian). Lady Hale cites Toulson LJ:


[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.


Guardian v Westminster has been frequently referred to since 2012. Notably, it was affirmed by the Supreme Court in Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455 and A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558. The concept of open justice goes back at least to Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where the House of Lords explained the long history of the principle (and see ICLR blog: ‘To be heard in the dining hall…’: Scott 100 years on’).


The application of the principle to all common law courts – that, not just to courts which are subject to CPR 1998 – is explained clearly in Cape Intermediate v Dring where the Supreme Court says:


[41] The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.


Cape Intermediate v Dring and the family courts


Not least of all, the open justice principle applies to family courts, though with the variety of exceptions trailed in Scott (above), and now more specifically summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3) (see Part 2). A summary of these statutory provisions is provided in Dring:


[46] … There may be very good reasons for denying access [to documents]. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality….


So how does the case impact on the family courts? It raises a number of important questions, which these articles must address. First, to what extent does Cape Intermediate v Dring apply to family proceedings at all? The case summarises the common law on open justice. To what extent, if at all, can the common law be overlaid by a rule?


First, what are the rules in question here; and how do they apply to civil proceedings after Dring? CPR 1998 r 5.4C (as relevant here) provides, under the heading, ‘Supply of documents to a non-party from court records’):
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.


In addition, CPR 1998 PD5A para 4.2 sets out a variety of formal ‘records of the court’ which any party to the proceedings is entitled to: for example, written evidence filed in relation to an application, judgments or orders made in public and any notices of appeal.


The parallel rule in family proceedings (not cited in Dring) is FPR 2010 r 29.12(1) which says – a little elusively, it might be thought – under the heading ‘Access to and inspection of documents retained in court’ that save where the rules or a practice direction otherwise provides ‘no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court’. In context the term ‘inspection’ (see also FPR 2010 r 21.1(2)) can be taken to mean inspection and copying for a suitable fee; though no mention is made here specifically of non-party inspection. Again perhaps that can be implied; but the law must surely be clearer on this point.


Cape Intermediate v Dring: the case and the decision in the Court of Appeal


Cape Intermediate v Dring gives the Supreme Court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to those not directly party to proceedings (ie ‘non parties’). It continues an important line of authority going back to the minority speech of Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 (both cited in the Supreme Court).


The case itself came about after an asbestos victim support group (Mr Dring was an officer of the group), not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order which had been made by a Master under the provisions of CPR 1998 5.4C (above).


The Court of Appeal ([2018] EWCA Civ 1795 (31 July 2018)) narrowed the ambit of an earlier Master’s order and held (on direct appeal from the Master) that the court could give permission for release to a non-party the following (and see summary in the Supreme Court decision at [9] to [11]):


  • The documents summarised in para 4.2 (above); but not including, necessarily, trial bundles.
  • In its inherent jurisdiction the court generally, has an inherent jurisdiction to permit non-parties to obtain certain documents (see [69]); GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 994-5). The main rationale for application of the inherent jurisdiction is to accord with the open justice principle and to enable anyone permitted to attend court to make sense of proceedings (see eg Guardian v Westminster). The following documents might be released:
  • skeleton arguments and other written submissions (Cape Intermediate at [69]; GIO (above));
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports (Cape Intermediate at [96]), but not their exhibits (Cape Intermediate at [100]); and
  • any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at [110]).
  • The Court of Appeal sent to Picken J a decision as to whether certain other specific documents fell within (2) above or otherwise required release to comply with open justice principles.


On Cape’s appeal and Dring’s cross appeal the Supreme Court upheld the Court of Appeal’s decision. Limits remain on application of r 5.4C; but in general terms the spirit of the important Court of Appeal open justice principle decision in Guardian v Westminster has been developed by the Supreme Court and Court of Appeal and related more generally to civil proceedings.


So where does this leave the non-party in family proceedings? The next article looks at the extent to which FPR 2010 r 29.12 is compliant with the common law; and, if it is not, whether it is within the statutory powers of the rule-makers (Family Procedure Rules Committee). Subject to that, what are the powers of family judges to order release of documents from family proceedings?


What does ‘irretrievable breakdown’ mean as a ground for divorce?

20160419_170156Irretrievable breakdown of marriage: the old and the new


In Matrimonial Causes Act 1973 (MCA 1973) ‘irretrievable breakdown’ of marriage is easy to deal with. Everyone – other than academic lawyers, perhaps – knew that what proved divorce was the ‘facts’ (MCA 1973 s 1(2)): adultery, unreasonable behaviour, desertion (two years) and living apart (two years with consent and five years, without). It is the term used as teh sole ground for divorce in the Lord Chancellor’s proposals for law reform in Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (considered also here).


Under the existing law, no one actually files an ‘irretrievable breakdown’ petition – obviously. Well no-one calls it that, anyway. You file an ‘adultery’ petition, a ‘two year consent’ petition and so on. As a matter of political fact the ‘irretrievable breakdown’ part of divorce (MCA 1973 s 1(1)) was a middle line between the reformers who promoted the Divorce Reform Act 1969 and the clerics (‘no man shall put asunder’). In law, irretrievable breakdown was the ground; but that ground did not exist alone. It had to be proved by one or more of the five facts. On its own it became more or less of no meaning or significance.


Now ‘irretrievable breakdown’ on its own is proposed by the Lord Chancellor as the ground for divorce; but unsupported by any facts as proof. Proof is only by a party (1) filing a divorce application; or (2) by both parties so filing an agreed application. The problem is that, in a vacuum, the word ‘irretrievable’ – especially when applied to breakdown of a relationship – has a distinctly heavy meaning. Stated bleakly and unsupported, ‘irretrievable’ – unsupported by qualifying facts – means final. Yet who can say their relationship is for ever at an end?


The end of a relationship; but ‘irretrievably broken down’?


A personal relationship may be at an end. It may, for now, appear even to have broken down. This need not mean the breakdown is ‘irretrievable’. Lots of parents and their children fall out; but their relationship is not irreparable. I may lose touch with a friend, especially when Christmas card contact is less common nowadays. Our relationship may be in abeyance for a few years, broken down or lapsed; but is it ‘irretrievable’? And who can say of a relationship now that it is ‘irretrievably broken down’? Put like that ‘irretrievable’ is a very sad – daunting even – word; and, logically, it is impossible to assert.


And yet, the Lord Chancellor proposes no hard-edged ‘fact’ to prove ‘irretrievable breakdown’ – for example, living apart for a period (perhaps six months or a year). A fact, which can be denied (‘we weren’t living apart all that time’) would have the same clear and provable effects as the present MCA 1973 s 1(2) ‘facts’. It would enable the highly subjective ‘irretrievable’ to be proved in the tiny minority of cases where the living apart was disputed.


Law reform on the back of a case as badly case managed as Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067 (Lord Wilson in Supreme Court explained how it should have been done) – and where there were no dependent children – is not a good basis for law reform. A judgemental ground with any scope for judging denied is not logically – or in law – a good way forward.


‘Irretrievable breakdown’ as a form of words was rarely – if ever – analysed under the existing legislation. If there is to be no basis for contesting divorce proceedings, as the Lord Chancellor proposes, that ‘irretrievable’ – unsupported by a fact to prove it – is likely to be open to challenge. And the way it was used in the 1969 Act (now MCA 1973 s 1(1)) must be fully understood by the divorce law reformers.


The prior ‘marriage’ must also be defined. It is the ‘marriage’ which is said to have broken down. On open ground – ie with no back up facts for proof – what does the Lord Chancellor mean by a marriage? That is for another day.

Divorce reform: Lord Chancellor’s response – first thoughts

20160419_170156Response to consultation


In the Lord Chancellor’s Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (‘the Response’) he sets out his concerns that the law be used to minimise ‘the potential for couples to entrench positions as against each other’ (p 3) and to reduce the damage for children involved. That said, mediation for families receives no serious consideration in the Response. Absence of support for mediation in relation to a document which deals with family breakdown is disappointing.


I entirely accept that fault should be eliminated from the divorce process. However to say that an assertion proves that assertion (of marriage breakdown, in this case), as does the Response, and to retain judges to adjudicate (but adjudicate on what?), with only infinitesimal right of challenge feels illogical.


That said, I accept that all that follows awaits legislation and detailed court rules. No draft bill accompanied the Response. How much of what is proposed will be in statute, and how much in rules (probably in Family Procedure Rules 2010 Pt 7) remains to be seen. Aspects of what the government propose appear still to be under review.


Two aspects of the proposed reforms will be considered here:


  • The ground for divorce
  • The ‘removal of the opportunity to contest’


Grounds for divorce


The central passage of the Response recommends that irretrievable breakdown should remain the sole ground for divorce, as now; but that this should be based on a ‘notification’ process. The court should remain involved; but the judge has no adjudicative capacity since no issue on which a judge is required arises (save on eg jurisdiction and validity). The response at p 26):


We propose that the legal process for ending a marriage or civil partnership should start with a statement that the marriage or civil partnership has irretrievably broken down. In the consultation paper we in places referred this as a “notification” process…. We are clear that the decision to grant a divorce remains a legal decision for the court to make.


The Response goes on to identify matters to be dealt with by the judge: ‘A divorce is a fundamental change of legal status that will alter people’s rights and responsibilities’. But to what extent, and on what evidence, will judges check up on these things? The Response particularly mentions:


  • Whether the court has the jurisdiction to grant a divorce,
  • Is there a legal marriage for it to dissolve?

‘These are important legal safeguards’. So they are, especially in a jurisdiction where the sole arbiter of marriage is a 70 year old consolation statute (Marriage Act 1949) which dates back to the eighteenth century. So says the Response:


Where these legal safeguards are met, we propose that a statement to the court from one party to a marriage that the marriage has irretrievably broken down should be sufficient on its own to satisfy the legal threshold for obtaining a divorce.


But has the Lord Chancellor thought about how these matters will be checked administratively? Will an applicant have to satisfy the court administration before filing a statement? And what of collusive statements (eg to evade immigration rules)? How will this be dealt with in a system which says any ‘opportunity to contest’ is removed?


Challenge to the divorce application


The default position of the Response is that any challenge to a ‘notification’ statement should be excluded (p 29):


The Government therefore continues to believe that the ability to contest a divorce on other bases, such as disagreement with the other party’s decision to divorce, does not serve the interests of either party.


The law remains as now on ‘void marriage’ and ‘non-marriage’. There must be potential at least to reply on that basis; but how will that be dealt with? To a degree this last point is answered by the Response (at p 29):


In all cases, a divorce application could still be challenged on the bases of jurisdiction, validity of the marriage, fraud or coercion and procedural compliance. The court’s power to refer matters to the Queen’s Proctor also strengthens this safeguard.


There remains something uncomfortable about a court being required by statute to accept a statement from one party, where the other’s right to reply is highly restricted. Some basis for irretrievability (say living apart for a period) would give it substance beyond what could sometimes be little more than one party’s whim.


If the court is to remain involved in this proposed dissolution process, then it must be recalled that two of the fundamental bases of natural justice are notice and hearing both sides (audi alterem partem). Notice will be established by rules as to service. A legal system which only enables a party to state facts – it is irretrievable breakdown because the applicant says so – makes the court just a registrar. To say that that highly subjective assertion has in addition to be proved by a simple fact, capable or verification or corroboration (and of being denied by a respondent in those rare cases where there was doubt as to the fact) – would surely be more fair?


If the court is to be a registrar of divorce only, let us say so. No doubt a computer can be harnessed appropriately. If a divorce issue arises, or (say) the Queen’s Proctor becomes involved, then access into the court system can be arranged.

Divorce reform, but no more…

20160419_170156Reform of ground for divorce: when there’s time…


The Lord Chancellor has produced a response – a press release promising reform of divorce law – following his consultation on divorce law reform last Autumn.


Proposals for changes to the divorce law (and parallel civil partnership law), we are told, will include:


  • retaining the irretrievable breakdown of a marriage as the sole ground for divorce
  • the requirement to provide a statement of irretrievable breakdown
  • retaining the two-stage (decree nisi and decree absolute0 process for final dissolution
  • possibility for a joint application for divorce, alongside retaining the option for one party to initiate the process
  • removing the ability to contest a divorce
  • introducing a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).


Detail is awaited, when the full scheme is announced. This will be, we are told, when the legislative timetable permits. First thoughts include:


  • You cannot prevent someone ‘contesting a divorce’: if one spouse or civil partnership is entitled to make an assertion to the court (ie irretrievable breakdown) the other must be entitled to disagree: ie a fair trial.
  • We do not know how irretrievable breakdown will be proved (NLJ proposed a new Matrimonial Causes Act 1973 s 1 (irretrievable breakdown) in October 2018.
  • The government has been panicked into divorce reform in the wake of the Owens case (Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067, which is a real example of poor cases making bad law: had her case been properly pleaded by her lawyers Mrs Owens could have got her divorce (see NLJ August 2018).


Marriage and cohabitation breakdown: much more is needed


That is not to say that divorce law does not need reform. It does. But so does so much more of family law on relationship breakdown, which reformers overlook in the rush to change the narrow area of divorce. And the Lord Chancellor thinks he is offering a palliative to cover a narrow area in need reform.


In the area of relationship breakdown at least the following needs urgently to be reformed:


  • Cohabitation law and financial support for ex-cohabitant (ie unmarried) partners
  • Mediation available on a basis supported by statutory funding (which is needed, also, to help children in the bitterness of relationship breakdown: one of the Lord Chancellor’s aims with his divorce legislation)
  • Rewriting of Marriage Act 1949 which seriously discriminates against many couples which are not married in a still Christian-based statutory framework.

Anonymity: private and public proceedings

20160419_174504Open justice principle


Anonymity in relation to court proceedings tends to go with privacy (or secrecy) in proceedings, notably in family proceedings. The default position in all proceedings remains open justice, and therefore that names can be publicised. This is the open justice principle whose rationale was clearly asserted (amongst many examples) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:


[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?… In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said… ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’


In civil proceedings generally (including all appeals to the Court of Appeal) the general rule is that hearings are in open court (common law (above); CPR 1998 r 39.2(1)). This rule applies to divorce proceedings (FPR 2010 r 7.16(1)), and may apply to certain other family proceedings if the judge prefers to rely on common law rather than to a rule which only partially states it (ie that all family proceedings should be in ‘private’: FPR 2010 r 29.10)).


If the court says so, a hearing may be in private. In effect CPR 1998 r 39.2(3) and FPR 2010 r 7.16(3) says the same thing namely, that a hearing may be in private if amongst other factors:


(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;… or

(f) the court considers this to be necessary, in the interests of justice.


Anonymity and Civil Procedure Rules 1998


Thus in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (8 March 2019), Martin Spencer J a claimant who sought damages for psychiatric injury arising out of the stillbirth of her daughter was denied anonymity: none of the exceptions in CPR 1998 r 39.2(3) applied. Anyway, said the judge, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case.


By contrast, in XW v XH [2019] EWCA Civ 549 (2 April 2019), the Court of Appeal dealt with a financial relief appeal. The couple’s son had a life-threatening condition. At the conclusion of the trial below the judge had made a reporting restrictions order. He anonymised the names of various people and redacted part of his judgment, saying there was little if any public interest in knowing the family’s identity. The appeal court referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (where the wife’s application for anonymity in financial relief appeal proceedings failed) from which it extracted the following:


  • In a financial remedy appeal, a formal application must be made for restrictions or reporting and for anonymity;
  • only exceptionally would an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal: parties were not routinely entitled to anonymity and the preservation of confidentiality in their financial affairs
  • parties could not waive the rights of the public by consent: the decision was the court’s, having conducted the balancing exercise in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (and see R v Legal Aid Board exp Kaim Todner[1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J);
  • the Court of Appeal would pay close regard to any anonymity order made by the first instance judge, although such orders were not binding (eg because of the different starting points for the respective courts);
  • the interests of a child might render it necessary to restrict public reporting of certain information in financial relief cases, K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA Civ 550, Norman and Re S followed


Anonymity and divorce proceedings


On the assumption that anonymity is normally denied where a hearing is in open court, two recent divorce cases give pause for thought. Exceptionally for family proceedings, the same open court rules apply to divorce as to all civil proceedings. The foundation case for modern open court principles remains a nullity case – ie now Matrimonial Causes Act 1973 (MCA 1973: ie divorce) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where their lordships seemed astonished to think anyone could have thought the case should be heard in private. In AJ v DM [2019] EWHC 702 (Fam) (6 March 2019), Cohen J considered whether a wife’s divorce petition should be amended. There were other jurisdiction issues; but nothing in his judgement explains why the divorce aspect of the case – albeit that it might be said to be case management – should be anonymised as the rubric to the report says is the case.


M v P [2019] EWFC 14 (22 March 2019) was Sir James Munby’s marathon explanation (judgment post Presidential retirement) as to why a decree nisi based on a petition pleaded wrongly (couple married for less than 2 years at time of filing who claimed they had lived apart for two years, amended after decree to MCA 1973 s 1(2)(b) (behaviour)) was voidable. The court he said had power to find the decree absolute voidable – not void (ie in that cases, any remarriage would have been bigamous). The former President heard the case in open court. He allowed unrestricted reporting, but gave anonymity to the parties. At the end of the hearing he said that the reporting restrictions order should be continued indefinitely the parties full anonymity. He comes close to treating this as a matter of discretion (see [115]): ie for him to decide as he saw fit, not according to legal principle; and, for example he made no reference to the common law principles summarised in FPR 2010 r 7.16(3) (above).


Appeals: family proceedings


Many appeals in family proceedings are to the High Court. These may be in open court (FPR 2010 r 39.12A(2)(a) since December 2018); though the rule does not say in what circumstances. In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J created an unusual precedent (for commentary on the case see ‘Not a vacuum but a low pressure vessel’ (Seusspiciousminds) and ‘CS v SBH: a child’s competence to appoint her own lawyer’ (Transparency Project)). He was to have heard a child law appeal in open court; but because a solicitor who wished to appear as advocate to represent the child did not have higher rights, he decided to switch the appeal to be heard in chambers (see [22]).


No clear principle is yet laid down as to when an appeal under r 30.12A should not be in open court, which – after such cases as Norman v Norman (above) – might be thought to be the norm. But to diverge from principle because of the rights of audience accorded to a particular advocate may be thought original. It being a children case no question of anonymity was in issue.


FPR 2010 r 30.12A(4) suggests that a practice direction may deal with when a family hearing is to be in open court; but none has yet been made. The rule does not deal with anonymity, save – indirectly – in that secrecy of a hearing is likely to connote anonymity also.




Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).


Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.