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 https://www.bloomsburyprofessional.com/uk/childrens-views-and-evidence-9781526503176/  (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]).

 

Participation

 

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.

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A draft domestic abuse bill

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Domestic abuse and domestic violence in 2019

 

Domestic abuse is endemic in UK society. The law’s response, in general terms, has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (which is rarely used), uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order), and even prohibited steps orders in Children Act 1989 Part 2 proceedings. Each is governed by a different set of procedural rules. Different means of enforcement are employed according to the remedy and the order made by the court.

 

Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

 

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson [1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said: ‘I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnson remains important: it provides the continuing House of Lords definition of the stare decisis rule.)

 

A draft bill

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

 

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

This post will concentrate on the first and last of these and then look at what rights issues may be engaged.

 

Domestic abuse

 

At present the most extensive definition of ‘domestic abuse’ is in tucked away Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm. In LASPOA 2012 Sch 1 para 12(9) ‘domestic violence’ is defined as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

 

The bill sets out the modern, and more extensive than any before, definition of ‘domestic abuse’. Prominence for, and a definition of, ‘domestic abuse’ is welcome (as is a modernisation of Lord Scarman’s definition: in strict precedence terms Lord Scarman comes before a Practice Direction). Physical abuse and threatening behaviour are in the definition; and so – crucially, I suspect – is ‘controlling or coercive behaviour’. ‘Economic abuse’ and ‘emotional or other abuse’ (echoing Lord Scarman, perhaps) are important developments in statutory thinking.

 

I will not attempt, here, a thesis on the differences between each of the three definitions. The Lord Chancellor will need – surely? – to align the statutory LASPOA definition with the wider and more realistic definition in the bill. Once the bill reaches the statute book – if no General Election intervenes, as happened with the last more modest Tory Lord Chancellor bill in early 2017 – this comparative exercise will be needed to show how the law has moved on since 1976; and to define what the law means in 2019.

 

‘Protection for victims and witnesses is court’

 

Under the heading, ‘protection for victims’ etc Part 4 introduces a new Part 4B to Matrimonial and Family Proceedings Act 1984 (generally regarded as the statute which still is kicked about by amendment for many forms of family proceedings). But first: it is to be hoped that the bill will not reach the statute book with ‘victims’ still in the title (as above). They are ‘alleged victims’. Anecdotal evidence exists that parties to family proceedings (mostly women) are concocting their allegations to help them to obtain legal aid. The ‘alleged’ handle (‘complainant’ would be more neutral and economical of space) is perhaps more important than ever.

 

The scheme under Part 4 is derived from Youth Justice and Criminal Evidence Act 1999. Yes in criminal trials the protection for witnesses has a life of nearly 20 years. Part 4 proposes that where an alleged victim risks being abused all over again in court by being cross-examined by her alleged abuser, the court can appoint an advocate to cross-examine the alleged victim as ‘representative’ of the alleged abuser (proposed s 31V(5); and see YJCEA 1999 s 38(4)). The ‘representation’ point will need careful review: s 31V(7) goes on to say that the representative ‘is not responsible to the party’, as in YJCEA 1999; but what does that mean if the advocate is the alleged abuser’s ‘representative’?

 

And yes, for any lawyer reading this post: there is provision for payment for lawyers for doing the cross-examination job, set out in proposed s 31W; but the detail of what is paid and how by the Lord Chancellor will be needed.

Human Rights Act 1998 and family law in 2019

20160419_173301

Tories and European Convention 1950

 

Recent press comment has gone back to concerns about the Tories getting rid of Human Rights Act 1998 (if they ever find time with all their Brexit distractions): . What does this mean, in the context (mostly) of family law?

 

I would hate to see our Human Rights Act 1998 being repealed; but I do not wish to sound complacent. In many cases, repeal of the Act is little more than a cheap political gesture – ‘sound and fury signifying nothing’ (Macbeth); well, nothing very much. If the Tories repeal the Human Rights Act 1998 in its entirety, not an enormous amount would change in most cases where European Convention 1950 principles are cited.

 

Human rights law

 

English human rights law (which is a much wider subject than the 1998 Act) is permeated by three deep running seams:

 

  • (1) Human Rights Act 1998 itself
  • (2) European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘European Convention 1950’)
  • (3) Common law

 

If the Act goes, the vast majority of each of law represented by these seams will remain and will be treated as part of our common law. For a recent example, see discussion of the term ‘likely’ after American Cyanamid v Ethicon [1975] AC 396 and Human Rights Act 1998 s 12(3) on the question of interim (yes, Lord Hain, ‘interim) injunctions in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 (23 October 2018). An interim reporting restrictions injunction was granted to complainants to protect their identity in relation to confidentiality agreements which all concerned had signed in exchange for, in the case of the complainants, substantial damages.

 

European Convention 1950 is deep in the psyche of most judges and other practising lawyers. It will outlast even the most sustained assault by any politician. It was drafted by leading English common lawyers after the Second World War. It has had an ineradicable influence on our common law.

 

Privacy: a human rights law for all

 

The example which is always mentioned by lawyers as to the influence of European Convention 1950 jurisprudence is the modern law of privacy: see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 through Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 to the very recent Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J; mix in JK Rowling’s case for her son Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481 and you see how fundamental to our common law has been the influence of European Court of Human Rights law on our common law. That will not change; and it is likely that the developing tort of breach of privacy will survive any political attack on human rights.

 

But let it not be thought that this aspect of human rights law is just for ‘celebrities’ (whatever that word means). It is important for all of us. I act for a child who has just found out that her father has accessed, and has taken (without telling her), all her communications with solicitors who want to help her (‘hacked’ her computer?). He then produced the lot in court. That is a plain breach of respect for her private life by her father (European Convention 1950 Art 8); and it may deny her rights to a fair trial (Art 6: the emails contain material from solicitors instructed by her which are, on the face of it, covered by legal professional privilege).

 

Human rights and a ‘child’

 

A more public child rights case which shows the importance of balancing human rights principles is Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J. This shows a judge who combines massive legal knowledge with very human principles and European Convention 1950. He applied thee to Angela Roddy’s wish to publicise her story about her treatment and that of her adopted child.

 

In 1999, when 12 years old, Angela became pregnant. In December 2003, when judgement was given, she was 17. Munby J ranged widely in his review of the law on competence of children following Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 and of the rights of a ‘child’ of Angela’s ag; but also balancing the Convention of Angela against those of the media and of members of Angela’s own family, of her adopted child and of the child’s family. Judicial analysis like that will survive any assault on Human Rights Act 1998. With or without a clear statute on human rights, the common law will continue to recognise that child’s rights (which, in themselves, are recognised by United Nations Convention on the Rights of the Child 1989).

 

‘Ultimate balancing test’ and human rights

 

In a variety of contexts the Lord Steyn ‘ultimate balance’ test in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 will survive. He explained freedom of the press (Art 10) in a case which crosses over from criminal law (a mother as on trial for her assault on a small child), to children law (the mother’s anonymity was in issue before the House of Lords: should it be protected to protect her child? No said Lord Steyn); and affects media law and freedom of expression, open justice principles and so on.

 

Lord Steyn explained how a court should balance, one against the other, Convention Articles which conflict in a particular case:

 

[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 value for all of us – adviser and judge alike – is of a set of factors to bear in mind (such as Articles in European Convention 1950: Arts 6, 8 and 10 in the case of Re S). And with those factors in mind the value of Lord Steyn’s balancing test cannot be overstated.

 

Even if you the politicians – legislature and executive alike – repeal the Human Rights Act 1998 the influence of European Convention 1950 running deep through the English common law will not go away. It is likely to survive the life-time even of the youngest reader of this post; and probably as long as the common law (ie the English High Court judiciary) lives on….

Video hearings and family courts

20160419_174504A video hearing scheme

 

A number of strands of family law and modern court practice coalesce in the civil proceedings default judgment video-link set aside scheme (Civil Procedure Rules 1998 Practice Direction 51V – the video hearings pilot scheme .

 

Family lawyers: please do not stop reading…. There may be important points which emerge from this scheme which can affect witnesses and parties in family courts. Video hearings can be an important subject in a variety of family proceedings. Four examples amongst many follow:

 

  • For those concerned with transparency in family courts video hearings, if both (or more) parties are on video, then attendances at court (eg of legal bloggers and press) are like to be impossible; unless special arrangements are made as PD51V
  • Especially in domestic abuse cases video link evidence may be critical for the allegedly abused party.
  • For those – witnesses and parties – who cannot afford to travel to court, or are disabled or elderly, video link hearings will be essential. I am dealing with a pro bono unit case now where a wife of limited means is threatened with loss of her home because a Family Court district judge made an order, in her absence, that she must sell her it (yes, really). The judge made no enquiry as to how she could travel 100 miles (and more) to court. (Yes she has filed her own notice of appeal; but she remains intensely worried.)
  • In another case of mine a 13 year old was interviewed by the judge. This was done by judge alone, with only the child’s solicitor present: nothing unusual in that. If the child was OK with it, is there any reason why the parents could not have seen the meeting on video? Any appropriate comment could then be made by parents in the course of the hearing of either party’s applications.

 

In passing it may be noted: in a recent First-tier Tribunal (child support) case I act in, a tribunal judge automatically offered a mother who was distant from the hearing tribunal, that the hearing should be adjourned so she could attend by video-link – a solution which did not seem to occur to the district judge in the Family Court sitting at Bedford.

 

What is the scheme?

 

Writing in New Law Journal on 29 November 2018 my colleague Stephen Gold said of the scheme:

 

‘The plan for Gogglebox civil justice has not been derailed even by Brexit. Proof comes in the form of a 12-month video hearing pilot scheme which starts today under PD51V. It will operate out of Birmingham and Manchester only and be confined to applications to set aside default judgments where the parties have consented to the application proceeding by way of a video hearing. Make up will be supplied free of charge by HMCTS to the judge and parties but not legal representatives who are regarded as being overpaid. Only joking about the make-up. The rest is deadly serious.’

 

The pilot scheme is limited, for the present to setting aside judgments made in default judgment proceedings (CPR 1998 Pt 12: not a very wide span of proceedings). It is the conduct in court of any proceedings which is important.

 

Paras 1.3 and 1.4 put statutory flesh on Stephen Gold’s commentary. It sets out the important detail of how the scheme is intended to operate:

 

1.3 All parties or their legal representatives will attend the hearing of the application, using the video-link, from suitable IT equipment and will see and hear, and will be seen and heard by, each other and the judge determining the application.

1.4 Hearings will be held in public. Members of the public may access a hearing by attending the court in person and will see and hear the judge and the parties or their legal representatives on a screen in the court room.

 

So yes, the court provides what amounts to an open court hearing….

 

Video schemes: private family hearings and open justice

 

My worry is that HMCTS will be quick to say, if these schemes are extended to family courts: ah yes, but almost all family hearings are in private (FPR 2010 r 27.10). There is no need for the taxpayer to go to the expense sent out in para 1.4. True; save that legal bloggers (and occasional others) and certain journalists are entitled to be in court (FPR 2010 r 27.11(2). That right will go – or will be diluted – if video hearings are set up without the additional rights to open court hearing in para 1.4.

 

Video link hearings and taking of evidence are here to stay. Rightly (in my view: see eg my client who at present has lost her house) video assistance to courts will increase. As video assistance increases: do those of us concerned with family courts transparency need to keep a weather eye on developments elsewhere, eg in relation to PD51V?

Happy Christmas children of ‘understanding’: know your rights in 2019

20160419_173301Email to a mature child

 

Imagine a case where a 13 year old (Poppy) has been told she can only seek a second legal opinion if she asks the solicitor now in her case. That first solicitor has already said she thinks Poppy does not have enough ‘understanding’.  She wants to live with one parent, the solicitor recommends the other and will not represent Poppy’s views in court (as in eg Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). The judge says that any lawyer Poppy wants to see for an appeal may only have documents if the court permits it. Believe me, it could happen…

This is an email to Poppy who wants help on an appeal. Her new lawyer has assessed Poppy’s understanding as sufficient to give instructions and to be represented on where she should live.

The text could be used for any child where it is necessary to explain Gillick to the child.

 

Mrs Gillick and her five daughters

 

Hi Poppy

 

Why did the judge’s tell Mrs Gillick: your daughters can go on the pill without telling you? Why can her daughters talk to a doctor without Mrs G knowing? Can you talk to a lawyer about your case without your parent’s agreement? And why should mature children, like you, be listened to by judges where your parents are in court after separation?

 

Mr and Mrs Gillick had five daughters all under sixteen (in law, in UK, anyone under 18 is a ‘child’). She said none of the daughters should be able to have access to contraceptive advice – ie to go on the pill – without her parents’ knowing about it. The House of Lords (the UK’s most senior court) said she was wrong.

 

The health authorities – this was December 1980 – said a doctor can prescribe the pill without parents knowing. Mrs Gillick disagreed. She was the mother of five daughters under 16. She objected to the guidance. There was no suggestion that her daughters were asking for the pill: she objected as a parent.

 

The main speeches (ie judgments in the House of Lords) in Gillick were given by Lord Fraser and Lord Scarman. What they said is still the law nearly 40 years later. They explained how a child’s maturity and understanding changes as a child gets older. Parents must recognise this. So must the law. Lord Scarman (one of my favourite judges of all time) explained this:

 

The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….

 

Lord Scarman was saying: parents (and judges) must back off as a child gets older. As their ‘understanding and intelligence’ increases everyone – including parents and judges – must have more and more respect for these views.

 

‘Understanding’: what is to be understood?

 

Understanding also depends on what we are talking about: understanding of what you want to eat (ie not what you should eat) is well-developed for a very young child. Tiny children know what they don’t like. Lots of small children don’t like broccoli or cabbage. On the other hand an ‘understanding’ of physics may still be limited, even when you are much older (I can’t claim to have much of an ‘understanding’ of physics; but get me on history, and I’m much better).

 

Gillick applies not just to doctors and broccoli. It applies also when you are involved in court proceedings where your parents have separated. There are all sorts of English laws which say that a child’s views must be listened to by judges.

 

In a court case between parents about where a child should live (‘custody’ or ‘residence’), if a child is old enough to say what they think (express ‘a view’) they should be listened to. If they want to be listened to, this could be through a welfare officer or a lawyer (ie a solicitor).

 

The judge may not agree with what the child wants. That is a different question. But the judge must – for that is the law in England – listen to what a child has to say.

Children and private law: to claim the rights – Part 2

20160924_142217Procedure for a child’s application

 

The first post in this series outlines the rights of children and their views in proceedings concerning them. This part will look at court procedures procedure for how rights – a child’s ‘views’ – are dealt with as a court process; or how the rules – so far as they can be understood – deal with those views. Part 3 will look at how a child’s views are dealt with in practice, and what court procedure rules actually permits.

 

The law sources of information as to a child’s application are varied. They are statutory under CA 1989, in the rules (FPR 2010 and perhaps CPR 1998), in practice directions and in scattered case law decisions. Each of these sources has to be threaded into a coherent whole by the child – or the child’s adviser – who wishes to apply to the court. This note, as already explained, deals only with private proceedings (see part 1): that is, proceedings under Children Act 1989 (CA 1989) were children of ‘understanding’ wish to make an application, or to join in proceedings between their parents (eg to say to the court where they would like to live).

 

First, which court? Some family proceedings are issued in the Family Court, some in Family Division of the High Court. And don’t let anyone tell you we now have a unified family court, as this example shows.

 

Shortly after CA 1989 came into operation and children started making their own applications to the family courts the then President of the Family Division issued a practice direction which directed that children applications be in the High Court. Practice Direction of 22 February 1993 (Applications by children: leave), [1993] 1 WLR 313, [1993] 1 FLR 668 says:

 

Under section 10 of the Children Act 1989, the prior leave of the court is required in respect of applications by the child concerned for section 8 orders…. Such applications raise issues which are more appropriate for determination in the High Court and should be transferred there for hearing.

 

Given the final paragraph of the practice direction, it is likely that if a child wishes to apply to be joined in family proceedings that also should result in a case already before the court being transferred to the High Court.

 

A child’s views in section 8 proceedings

 

Next it is necessary to look at the types of case where a child may want to have their views heard in private proceedings.

 

(1) A child’s free-standing application in CA 1989 Pt 2 proceedings

 

In Re SC (A Minor) (Leave to Seek Residence Order) [1994] 1 FLR 96 Booth J was dealing with a 14 year old child who wanted to apply to live with the family of a long-standing friend. Booth J was quite clear that SC was entitled to make the application (rather than only the person with whom the child proposed to live) (at 100):

 

… The Act enables a child to apply for leave to apply for a s 8 order and a residence order is not excluded. In my judgment the court should not fetter the statutory ability of the child to seek any s 8 order, including a residence order, if it is appropriate for such an application to be made. Although the court will undoubtedly consider why it is that the person in whose favour a proposed residence order would be made is not applying, it would in my opinion be wrong to import into the Act any requirement that only he or she should make the application.

 

Application is made under CA 1989 s 10(2)(b) and (8)

 

(2)     The court may also make a section 8 order with respect to any child on the application of a person who— … (b) has obtained the leave of the court to make the application.

(8)     Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.

 

The child may pursue the application with a guardian (FPR 2010 r 16.4). This is the same as would be the case if she was taking ordinary civil proceedings by a litigation friend (CPR 1998 r 21.2), at least in theory. Because this is children proceedings it is more complicated than that.

 

Unlike in civil proceedings, a child can take proceedings under CA 1989 (see FPR 2010 r 16.6(1)) and do so without a guardian if the child has permission from the court or a solicitor is willing to accept instructions from her (FPR 2010 r 16.6(3)):

 

(3) [A child may take CA 1989 proceedings without a children’s guardian where] either –

(a) the child has obtained the court’s permission; or

(b) a solicitor –

(i) considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and

(ii) has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.

 

This provision replaces one which was inserted into Family Proceedings Rules 1991 (introduced alongside CA 1989) to deal with s 10(8) applications (formerly FPR 1991 r 9.2A(1)), a provision which was explained by the Court of Appeal in Re CT (mostly in the context of what may be done if a person – a parent, perhaps, or the court – considers that the child does not have sufficient understanding to consult the solicitor (see below)). Till that question is raised – if at all – the child can conduct the proceedings represented by a solicitor as if she were a private client; just as the hypothetical child in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 could consult a GP about contraceptive advice as if a private patient.

 

(2) A child wants to apply to join in existing proceedings which directly concern the child

 

There is no doubt that a child can be joined as a party to proceedings which concern him or her (r 12.3(3)); but the procedure whereby that is achieved and by what criteria are not clear. By contrast CPR 1998 r 19.2 restates the common law:

 

(2) The court may order a person to be added as a new party if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

 

Application is made in the existing proceedings (CPR 1998 r 19.5). In Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 the Court of Appeal dealt with three (of a family of six) children, whose views were not being independently represented by their children’s guardian. They considered they could no longer represented by him and consulted a solicitor. The judge refused to grant the application for separate representation (now under FPR 2010 r 16.6(5)). Thorpe LJ explained how the courts must adapt and recognise the development of children’s rights:

 

[26]   In my judgment, the rule is sufficiently widely framed to meet our obligations to comply with both Art 12 of the UN Convention and Art 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty­-first century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision-­making processes that fundamentally affect his family life.

 

In agreement with Thorpe LJ, Wall LJ commented that the guardian ‘would be advancing to the judge’ for the boys a case which was ‘directly opposed to what the boys were actually saying’. By refusing representation to the boys – including a 17 year old – the first instance judge overlooked the need for them ‘to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge’.

 

(3) A child whose instructions conflict with the child’s guardian; and the child wants his or her part in the case dealt with on the child’s instructions

 

In CA 1989 Pt 4 (care) proceedings it is relatively clear that a child can part company with her solicitor. If that happens FPR 2010 r 16.29 (which deals with solicitors appointed in care proceedings under CA 1989 s 41(3)) provides that:

 

(2) If a solicitor appointed [in care proceedings] considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

 

Matters in para (3) include the views of the children’s guardian. If he or she is against (save on grounds of understanding) the child would normally prevail.

 

There is no equivalent provision in Pt 16 for private proceedings; but this situation is so close to that in r 16.29(3) and Mabon (above) that, I suggest, conduct of the case for the child in s 8 proceedings is likely to be ‘in accordance with instructions received from the child’ as in r 16.29(3). Some lawyers may disagree. There is no clear guidance that I can find for a child in the law or the procedural rules.

 

Clara and her solicitor

 

Imagine Clara from Part 1. Her case is under (2) above. Her parent’s case is already under way (like the Mabon boys). If she finds out that there is a way she can join in the proceedings and that she can find a solicitor to help her (with legal aid: assessed on her means (if any)), then the solicitor will have to assess her ‘understanding to give instructions’ (in the same way as under r 16.6(3)). Application can be made under FPR 2010 r 18.7 – an application in the course of proceedings – for an order that Isobel be joined. It will then be for the court to decide to what extent it takes into account her views (see eg Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347).

 

If she is introduced to a solicitor (eg by one or other of her parents, or by another relative) so be it. In S v S (Relocation) [2017] EWHC 2345 (Fam), [2018] 1 FLR 825 children of 15 and 13 were taken to see a solicitor (the duties of such a solicitor is considered at [31]-[32] in that case). Peter Jackson J (now a Court of Appeal judge; and ever a wise and perceptive children lawyer) reflected on the extent to which the court is entitled to question the wisdom (or not) of a course proposed by a child of understanding:

 

[23] … These boys are old enough to instruct lawyers to ensure that their wishes and feelings are fully represented. At their age, those wishes and feelings are a very important element in their welfare. That is so even if the wishes and feelings are unwise. There is nothing in the law that says that the wishes and feelings of older children should be wise or reasonable. They may be foolish or immature but respecting children’s points of view must, in the case of older children, accept to some extent the risk of them making mistakes…. This is not… the court washing its hands of the boys but, rather, taking a practical view of the real life of this family.

 

Is it appropriate for a solicitor to be instructed at all?

 

Finally, what of the position where a party or the court considers that the child may not be of sufficient understanding to consult a solicitor. That was considered by the Court of Appeal as long ago as May 1993 (when CA 1989 had been in force for less than 18 months). In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49 (where I represented CT as CA 1989 was bedding down on the statute book).

 

CT, aged 13, wanted to move from her adoptive parents to her natural family in South Wales. She needed my agreement to act (Family Proceedings Rules 1991 r 9.2A, the predecessor to FPR 2010 r 16.6(3)). With legal aid in place we applied for ‘leave’ (as then) under CA 1989 s 10(8). CT’s adoptive parents made her a ward of court which Thorpe J confirmed. She would be represented by the Official Solicitor. As she saw it, with 10p in a coin box in her school she could ring me. 10p gave her no time on the phone to the OS representative, even if he or she could be found. As a legal representative he was nothing to her. And anyway, as she said to Thorpe J after his decision (he refused to hear her beforehand): ‘I wants my own solicitor’.

 

Claire appealled against the wardship order of Thorpe J. In the Court of Appeal Waite LJ considered as one of the main issues whether assessment of understanding ‘is a matter for consideration by the court, or whether it is exclusively a matter for assessment by the solicitor who is deciding whether or not to accept instructions’ ([1993] 2 FLR 278 at 282). The court had allowed CT’s appeal. She should not have been made a ward.

 

But what of the judge’s anxieties which had led to wardship in the first place?

 

The result of ruling out wardship is that the judge will be left, at any future hearings of the case, with the same anxieties that led him to explore means of imposing a guardian ad litem in the first place. I have stressed that there has not so far been any suggestion that Mr Burrows is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that C is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge – and for that matter to other judges who may find themselves confronted with a similar situation – simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions?

 

The questions for the court on this aspect of the appeal were: was it for the solicitor alone to define the child’s understanding thus for the child to proceed alone; or can the court on its own initiative ‘or on the application of another party, to go behind the solicitor’s view and examine for itself the state of the child’s understanding and come to a conclusion which may differ from the view taken by the solicitor?’ Waite LJ preferred the second course. In cases of doubt about a solicitor’s assessment of a child’s understanding the court would have ‘the ultimate right to decide’ ([1993] 2 FLR 278 at 289). He hoped that the solicitor’s view of the child’s ability to instruct ‘would be rare’.

 

Clara’s way ahead

 

For Clara the first step will be to understand that she has rights and to get to see a solicitor and apply for legal aid. For the solicitor it will then be a matter of threading her or his way through the various forms of law, procedure and common law outlined in this article. And if anyone objects to Clara and her solicitor’s proposed course of legal action, they will need to dig out Re CT and follow it within the terms explained by Waite LJ.

 

And if Clara’s solicitor is to be shifted, that raises a whole fresh area of law. Questions of her ‘understanding to give instructions’ (FPR 2010 r 16.6(3)(b)(i); Gillick v West Norfolk and Wisbech AHA (above) and eg Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J) arise. In law that involves a review of the case the court perceives are the issues in the case, and the child’s ability to understand; and must not be confused with welfare issues in the particular case (see eg Briggs LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note (above); and see Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017 at Chapter 2).

Family proceedings: open justice and legal principle – Part 1

20160422_155058.jpgPublic hearings: what do the rules say?

 

This series of posts deals with most proceedings on family breakdown, and the extent to which they are – or should be – in open court (Part 2). To what extent is someone who attends court is entitled to know before-hand about the proceedings; and if so, what? This post looks at some underlying legal principles. To make the needlessly complex subject even more complex, different rules apply according to whether couples are married or not (see eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513, Mostyn J).

 

The common law and statute law in this area apply to all children and domestic abuse proceedings, whether a child’s parents were married or not. Procedural rules depend on whether your proceedings are covered by Family Procedure Rules 2010 (FPR 2010), as are all proceedings on married family breakdown, children proceedings and domestic abuse. Couples who seek help from the courts to deal with their property where they were not married are mostly outside what follows.

 

Secrecy and family proceedings

 

FPR 2010 rr 27.10 (secret court hearings) and 29.12 (release of documents to non-parties) deal with secrecy in family proceedings. First r 27.10 says that, in the case of family courts hearings under the rules (not family cases where couples were not married) are in secret (‘private’), save where rules say otherwise (eg the rarely occurring defended divorce). In law ‘private’ does not mean what the rule-makers think: see Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 (below and in Part 2). Rule 29.12 deals with release of documents ‘to any person without permission of the court’; and it is assumed that such release of documents applies to journalists who attend court.

 

To understand these two rules certain basic legal principles need explanation:

 

  • What is the common law and how can it be overridden?
  • Who makes FPR 2010, under what statutory authority and what are the rule-makers powers?
  • Can rules override the law?
  • When do judges make new law?
  • What is the common law in the field of open justice; and to what extent is this the default position for court hearings?

 

Each of these applies to the following areas of this subject:

 

  • Public, private and secret hearings of cases covered by FPR 2010 (ie not family proceedings which are not covered by FPR 2010 (eg where a cohabitant couple seek a decision on their property from the court);
  • Release of court documents to non-parties (including the press and other media) for them to understand hearings they may attend;
  • Release of court documents after the hearing; and
  • Anonymisation of family cases

 

The first of these areas will be considered here and a succeeding post (ie the open justice principle in Part 2). The remaining three areas will be considered later.

 

Fundamental principles: common law and statute

 

The extent to which family court proceedings should be in secret is governed almost entirely by the common law (with a smattering of codifying statute law: eg Administration of Justice Act 1960 s 12(1); and see Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA (considered in Part 2).

 

Explanation of the term ‘secret’ will illustrate how the common law works. In Allan v Clibbery the Court of Appeal (Dame Elizabeth Butler-Sloss P and Thorpe LJ) were concerned to establish the venue for the court’s consideration of an application by Ms Clibbery to be allowed to live in Mr Allan’s flat in London. The court had said no. Ms Clibbery gave all the papers to a newspaper. Mr Allan wanted the newspaper prevented from publishing anything. Munby J refused a restriction order; and the Court of Appeal said he was right.

 

In the course of her judgment Dame Elizabeth said of the venue for court hearings; and this is what establishes the common law which cannot be changed by rules (see below):

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

So, as will be explained in Part 2, a hearing could be ‘in secret’, in ‘open court’ and, as Dame Elizabeth Butler-Sloss P explained, ‘in private’. The rules cannot change this. This then raises some very basic points of legal principle.

 

Statute law and delegated legislation

 

The highest legal authority is statute law. Delegated legislation, because made under statute, comes a step down the statutory hierarchy. Subject to that, the common law binds all of us, save where it is overridden, or re-defined, by statute law. Neither common law nor statute can be overridden by delegated legislation or (in the case of common law, by superior court authority: High Court judge overridden by Court of Appeal; Court of Appeal by Supreme Court); save in the case of enforceable Henry VIII powers (R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387: see Lord Neuberger at [25] A Henry VIII power is ‘… a delegated power under which subordinate legislation is enabled to amend primary legislation’. Any court must test very warily against the powers granted by Parliament to a minister.)

 

A problem for all of us is to define what is the common law; and to know when it changes. Statutes are written down and published. If the copy of the statute you refer to has been updated (which the Government legislation website generally achieves) that, subject to judicial interpretation (see in relation to Re F (Part 2)), it is the body of UK statute law. In what follows I shall do my best to say what I think is the common law in the areas under review.

 

For the avoidance of doubt, the common law applies equally to family and to all other court proceedings. As Sir James Munby, then Munby LJ, said of a family finance case, Richardson v Richardson [2011] EWCA Civ 79:

 

[53] … The Family Division is part of the High Court. It is not some legal Alsatia [ie an area near Blackfriars between the Thames and Fleet Street: in the 17th century the lair of a variety of criminals, now mostly barristers chambers] where the common law and equity do not apply….

 

Common law and the open justice principle

 

Family Procedure Rules 2010 are made by Family Procedure Rules Committee (FPRC) under powers in Courts Act 2003 ss 75-76. Sections 75-76 give powers eg to ‘modify’ rules of evidence; but no power to override the common law that I can see: no Henry VIII power for a family proceedings rule-maker. So if rule-makers are to override the common law on the open justice principle – if that is what they have done in eg FPR 2010 r 27.10, as Part 2 will explain – what powers do they have to do this?

 

It is perhaps too obvious to say, but I’ll mention it all the same. Any power used by any public body or person (eg a government minister) must be traceable to a statutory source. A statutory body, like the FPRC – and the same goes for a local authority – cannot act outside what it set out in their empowering statute. (A curious side point is that Parliament told the rule-makers to make the rules ‘simple and simply expressed’ (Courts Act 2003 s 75(5): a nice judicial review point would be to challenge the complexity of the rules – eg for child representation under FPR 2010 Pt 16. The applicant would ask the High Court to find the rule in question unlawful. After all even Lady Black (as she now is) declared aspects of Pt 16 to be ‘of complexity’ (in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027) and misunderstood them, in my view (as explained in Children’s views and evidence by David Burrows, Bloomsbury Professional, 2017 at Preface and Ch 6)).

 

Rules cannot change the law

 

There is ample authority for the proposition that a rule only regulates the law: it cannot create or change the law (save within powers in its empowering statute). That applies changing all primary law (statute and common law). Thus see eg Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210 [per Lord Denning MR].

 

Two more court of appeal authorities will suffice on this point: British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628; and Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75.

 

The question in this post will therefore be: what is the common law; and does the rule diverge from it? If the answer to the second question is ‘yes’, then the rule may be ultra vires (outside the powers of) the rule-maker. It can be challenged on judicial review.

 

As will be explained in Part 2, the two rules – FPR 2010 rr 27.10 and 29.12 – are not, in my opinion, compliant with the common law. Part 2 explains what I understand to be the common law – mainly the open justice principle. I shall base what I say on decided cases. I will show why I believe the rules to be unlawful in the sense that they are inconsistent with the common law and are outside the powers of the rule makers.

 

Aspects of the rules of precedent

 

It is appropriate here the common law rule as to what aspect of a judgment creates law, and what does not. High Court and Upper Tribunal judges and still higher judges (Court of Appeal and Supreme Court) create law. What they say binds other courts and mostly their brother and sister judges of similar level. However, law only represents what is necessary as a legal finding, to decide a case (the ration decidendi). Anything else is said ‘by the way’ (obiter) and, if said by a High Court judge and higher, is probably important – authoritative – but it does not bind any other judge (or magistrate or tribunal).

 

One example will suffice. In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J helpfully sets out in his judgment precisely what he was asked to do in the case before him:

 

[5] All I am being asked to decide today is whether the existing [reporting restrictions] order which restricts the reporting of the proceedings, should be lifted, or modified, at this point.

 

He explained why he was not prepared to extend permission to the press to report what went on in the Gallagher-Appleton case. He then went on to comment on release of documents from court cases as follows:

 

[13] This strict ‘watchdog’ [media] role is confirmed by the terms of the rules themselves. Rule 27.11 of the FPR 2010, which permits the admission of the press, confirms that the proceedings are held in private…. Further the press are not allowed any access to documents whatsoever – see FPR 2010, r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly….

 

This paragraph precisely shows up the ratio point. The first sentence deals with what Mostyn J was asked to decide. The rest of the paragraph is comment (obiter): it is the judge’s view of a related issue, but not one he was called upon to decide. In spite of this, the comment of Mostyn J is treated by many lawyers as saying r 29.12 prevents the press seeing documents in a family case. I very much doubt that this is in truth the law; but that is for another day… In the meantime, Part 2 will look at what is meant by the open court principle and how this applies in family proceedings.