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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Children’s rights: thirty years on from the Children Act 1989, Part 2

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A child’s views and Children Act 1989

 

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989. Thirty years on, the first article of these two looked at some of the more striking features of the Act. What case law has there been in relation to children’s views and how are their rights looked at by the English and Welsh courts (considered more fully at Ch 6 in Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional)?

 

This article asks: to what extent are those views taken into account? It starts from where Part 1 finished: a child only has rights if that child can understand, first, what those rights are and, secondly, how to exercise them. In the absence of these rights being understood and how to access operation of those rights, they can only exist in near futile abstract.

 

Contexts in English law where a child may make the child’s own application

 

The following are the main categories of circumstance where a child may want to make that child’s own application in family proceedings (examples of some of the types of case from existing case law are provided in Part 1). Most of these cases will proceed under CA 1989, but not all (eg child abduction or wardship):

 

  • A child’s free-standing application, whether or not with legal representation (CA 1989 s 10(8));
  • A child who wants to join in existing proceedings and to make the child’s own application and to have that child’s views taken into account;
  • Within existing private law proceedings, to dispense with a court-appointed guardian and for the child to proceed alone (with or without a lawyer);
  • A child whose instructions to the child’s instructed solicitor conflict with those of the children’s guardian (mostly in care proceedings); and the child wants her case to proceed on her instructions; and
  • A child who wishes to make her own court application alongside an earlier care order; and she wants to instruct her own solicitor where the child’s views conflict with the court appointed children’s guardian (see Re W (Child’s Representation) below).

 

The next question is: how in each category of case does a child (‘Chloe’) know how she can make application to the court, always assuming somebody has told her she has the right in the first place?

 

Lawyers get the law wrong

 

I will start with the last of these examples first, since it shows how even senior judges can get this area of law wrong (and they most certainly have access to law books and legal knowledge in a way which Chloe does not).

 

In Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027, the Chloe character aged 16 was subject to a care order but wanted to return home. When she ran away, the local authority did not want her returning home so applied for a recovery order. Unlawfully, but no one seems to have noticed this (a recovery order is not of a type which requires the court to appoint a children’s guardian), the court appointed a children’s guardian (R). This was the same guardian with whom Chloe had disagreed when the care order was made. Despite Chloe’s age, the solicitor (G) appointed by the unlawful children’s guardian, took instructions from the guardian not from Chloe. The Court of Appeal does not remark on any of these illegal steps.

 

In parallel with the recovery order application, Chloe found a lawyer (S) to act for her free (only G could get legal aid). S helped her to make an application for a discharge of the care order. In law that was now the right time for a children’s guardian to be appointed; but there was then no reason – again in law – for a children’s guardian to be appointed: Chloe already had a solicitor who was acting for her. Had everyone followed the law up to this point, this case would not ever have got to the Court of Appeal.

 

Black LJ (now Lady Black in the Supreme Court) found the law as to a child’s representation in Re W (Child’s Representation) of ‘complexity’. For example:

 

[18] There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010 [ie FPR 2010 Pt 16]….

 

This is a truly remarkable passage: two Court of Appeal judges (Black LJ sat with Tomlinson LJ), three barristers and their three solicitors (seven or eight specialist lawyers) could not work out which part of Family Procedure Rules 2010 (FPR 2010) Pt 16 (not Rule ‘16 FPR 2010’) at r 16.6 or r 16.29 applied. Had anyone picked up the point that the children’s guardian appointment was unlawful (see definition of ‘specified proceedings’ at CA 1989 s 41(6)) the case would have proceeded under FPR 2010 r 16.6 (ie where ‘a child does not need a children’s guardian’).

 

If the child FW had not found a solicitor to represent her free, it is unlikely any of us would ever heard of this case. FW, against her wishes, and without the court taking account of her ‘views’ would have been forced to stay in care. The fact that her children’s guardian and her original solicitor – without any comment at any level of court – paid any regard to her ‘views’ and she unable to find her way through the scheme which Black LJ found ‘complex’ scheme is – surely? – worrying.

 

Other forms of children application

 

I will revert to the beginning of my list above – the child who, it was said of the 1989 Act, wants in 2019 to divorce her parents. Procedure must be found in two places. First, CA 1989 s 10(2)(b) and (8); and Chloe must know she is of ‘sufficient understanding’. As Black LJ said in Re W, there is no definition of what is ‘understanding’ in the legislation; though in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam), [2019] 1 WLR 4286 (18 March 2019), Williams J at [79] in that case drew attention to what he thought were aspects of CS’s understanding. That takes Chloe, secondly, to FPR 2010 r 16.6 (‘a child does not need a children’s guardian’). Chloe can make her own application to the court (eg to live with a neighbour or aunt, against her family’s wishes) if the court agrees; or if she can find a solicitor who will take on her case and who can obtain legal aid for her.

 

Next – categories (2) and (3) above – are similar in procedure to (1); but the steps Chloe must take in each are not clear as the 1989 Act and the rules stand. The end result for Chloe in each process is to find to find her way into r 16.6. Category (4) is the well-tested format of a child parting company with her children’s guardian, so her solicitor must take instructions from the child if the solicitor is content that the child is able to give ‘instructions on the child’s own behalf’ (r 16.29(2)).

 

All of these applications by a child depend on her knowing the application can be made; and of finding a lawyer who accepts that the child is of understanding. The recent experiences of the children in the Re W and Re CS cases, show that the view of a child is only indistinctly accepted by some lawyers and judges. W was 15 or 16 and CS nearly 13: to adapt Mark Anthony (in Shakespeare’s Julius Caesar) to children’s law: ‘understanding could be made of sterner stuff’).

 

‘Views’ of a child in English and Welsh law

 

And so to return to United Nations Convention on the Rights of the Child 1989, whose Art 12, it will be recalled, 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.

 

From available reported case law, it seems likely that – with honourable exceptions: see eg Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 and Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (both considered in Part 1) – the English and Welsh family courts pay not even lip service to the Convention and Charter. For example in Re W neither are mentioned at all; and in Re CS the Convention was mentioned only as a quote from Mabon.

 

But to ‘assure to the child … [a] right to express views freely’ the child must know that the child has that right and how views are to be expressed. I do not think that the family courts system has even begun to do that. If I am right, for all the high aims of the 30 year old 1989 Act, Article 12 is meaningless and much of what the Act aimed to achieve is also meaningless (in terms of children’s rights) unless children of ‘sufficient understanding’ (CA 1989 s 10(8)) and who ‘are capable of forming [their] own views’ (Art 12.1) know they have the right, and how to exercise it.

Children’s rights after Children Act 1989: Part 1

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Royal Assent for Children Act 1989: November 1989

 

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989. Its thirtieth anniversary is approaching. Mostly, the Act came into force two years later (October 1991). It was a statute which required all courts, social workers and practising children lawyers (a breed which at the time was only just emerging) and most family lawyers, to learn a completely new set of legal concepts.

 

Much of the Act (Parts 1 to 5 and 10) required a profound re-thinking of the law and its underlying assumptions. For example the change from parental rights (signalled by the Gillick case (below)) to parental responsibility; the simple ‘significant harm’ concept for all care orders which only the local authority could apply for; the idea that in law a child of understanding was a person with rights and thus competent – perhaps with legal or other assistance – to be involved as an active party in proceedings.

 

This article looks at how the law in relation to children’s rights under the Act have moved in the thirty years since it received Royal Assent. Central to the subject of children’s rights is United Nations Convention on the Rights of the Child 1989 (the same year as the Act) whose Art 12 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, goes a little further, by extending children’s rights expressly to actions of public authorities or private institutions. At the time of writing it is not clear for how long UK children will be directly entitled to protection from this Charter.

 

These Articles, though not part of the 1989 Act, can be taken as the golden metwand by which assessment of children’s rights in England and Wales over the thirty years after the Act can be judged.

 

Legal developments in the run up to the Act

 

In the ten years prior to the Act there were a number of significant developments in child law. First, in A v Liverpool City Council [1982] AC 363 at 372, (1981) 2 FLR 222 the House of Lords considered whether the wardship jurisdiction could be used to ask the High Court to review the exercise by a local authority of their operation of a care order. The House of Lords said no. Their view is represented by Lord Wilberforce who said:

 

‘… The court has no such reviewing power. Parliament has by statute entrusted to the local authority the power and duty to make decisions as to the welfare of children without any reservation of a reviewing power to the court. There are, indeed, certain limited rights of appeal as to the care order itself: under section 2 (12) of the Act of 1969 there is an appeal to the Crown Court against the care order;…’

 

This approach to responsibility for care orders is incorporated into CA 1989; but by the same token local authorities may not apply for wardship (which the Act calls ‘inherent jurisdiction’), save with permission from the court (CA 1989 s 100(3)).

 

Secondly, in the mid-1980s, came what was later called the ‘tandem model’ of child representation (advocate and guardian ad litem) in care proceedings; though early on it was found (a circuit judge decision in AR v Avon County Council [1985] FLR 252) that parents had no right to appeal against care orders: a double blow alongside A v Liverpool. The tandem model was developed extensively in CA 1989 Pt 4 and remains firmly part of the modern children law.

 

Thirdly, was Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 which remains common law of the highest authority on the development of a mature child’s understanding (in Gillick the ‘understanding’ was whether a doctor could provide contraceptive information to a child under 16 without her parent’s consent or knowledge: the answer was, yes); and of the way a parent’s right yields to a child’s right to make the child’s own decisions as the child ‘reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’ (per Lord Scarman at [1986] 1 AC 112, 186).

 

Finally, two years after Gillick came publication of the Report of the inquiry into child abuse in Cleveland 1987 Cm 412 London (HMSO) chaired by Elizabeth Butler-Sloss J. The Report was concerned with allegations of child abuse and of the ill-co-ordinated response of health authorities, social workers and police to the allegations. One of its clearest points was to emphasise that a child is a person, not just an object of concern.

 

Birth of Children Act 1989

 

As a Law Commissioner, Brenda Hoggett (the judge now known as Lady Hale, President of the Supreme Court) was closely involved with the development of the Law Commission reports, ideas and drafting of what became the 1989 Act. Amongst the Act’s more radical elements are:

 

  • To give children the right, if of sufficient understanding, to take part in litigation under the Act about them; and to affirm that every child involved in care and other local authority proceedings would be represented by a guardian ad litem (ie an independent social worker) and a solicitor in tandem;
  • To say in terms that the wishes and feelings of a child, the subject of proceedings, were factors the court must take into account when considering that child’s welfare;
  • To incorporate into one statute the private aspects of children proceedings (where and with whom they should live, for example) and the administrative law (which became known as ‘public law’: local authority care proceedings) components with, as far as possible, a consistent set of welfare principles to govern both; and
  • To provide legal aid for parents and children involved in care proceedings regardless of their means and of the merit of their case.

 

So how has the position of children’s court applications developed since 1991? Frankly case law has been sparse (since the early few children application cases). The common law has developed only hesitantly (mostly in the occasional decisions of Lady Hale since she arrived in the House of Lords (now Supreme Court)).

 

It was understood from early on that – Legal Aid Board (as it then was) permitting – a child could ask for permission to apply for the child’s own order under CA 1989 Pt 2 (‘a Section 8’ order); or, as the media called it, a child could ‘divorce her parents’ (as did CT in Re CT (A Minor) (Wardship: Representation) [1994] Fam 49, [1993] 2 FLR 278, CA who wanted to leave her adopted parents and to go back to live with her birth family, with whom she had retained contact). The child’s solicitor, with final say from the court, was the arbiter of whether a child had ‘sufficient understanding’ (CA 1989 s 10(8)) to make the application. In recent years reported decisions on children taking private proceedings are rare.

 

By 2005 two highly experienced family judges – Thorpe and Wall LJJ in the Court of Appeal – considered the rights of children to express views in proceedings between their parents in Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011. Parents of six children were engaged in residence order proceedings relating to the three older, boys aged 17, 15 and 13. They wanted to instruct their own solicitor to represent them for the hearing to resolve where they should live. The judge refused to grant the application for separate representation (now under Family Procedure Rules 2010 (FPR 2010) r 16.6(5)).

 

Allowing the boys’ appeal Thorpe LJ explained how the courts must adapt and recognise a developing attitude to children’s rights, their autonomy and to the court’s obligations to comply with them:

 

[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.

 

Thorpe LJ drew attention to the need to balance the welfare of the child against the harm to a mature child which might arise ‘from denying the child knowledge of and participation in the continuing proceedings’.

 

Listening to children

 

A year later, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 Lady Hale, then in House of Lords, considered whether an eight year old Romanian child should be returned to Romania. Of a child’s views (see Arts 12 and 24 above) she said:

 

[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. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But 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…. 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.

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 Lady Hale (now in the Supreme Court) considered whether, in care proceedings, a 14 year old girl should be called to give evidence. The judge had said no. The Court of Appeal felt bound by authority to say no also. Lady Hale’s judgment reversed earlier law and made it clear that a child can give evidence, depending on the circumstances. She traced the variety of alternative forms of taking evidence in children proceedings and concluded that there are two factors as to whether a child should give evidence: ‘[24] … the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child…’. Guidelines in relation to children giving evidence in family proceedings of December 2011 [2012] Fam Law 70 followed this case; but nearly ten years later children law rule-making or authoritative guidance is no further forward than these modest ‘guidelines’.

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 of the Charter was considered in terms by Ryder LJ in the Court of Appeal. Had the child, David (aged 8), been given ‘an opportunity to be heard’, in Romania? If not was this ‘in violation of the fundamental principles of procedure in [an English] jurisdiction’. The court considered he had not been heard on parental responsibility (ie in where he was to live as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. Ryder LJ cited Art 24 of the Charter in full and related ‘fundamental principles’ of procedure to CA 1989 s 1(3)(a), that is, the ‘ascertainable wishes and feelings of the child’.

 

Section 1(3)(a) was a ‘fundamental principle’ on which the court’s discretion is founded and which no ‘parent can seek to avoid’. It therefore goes further than ‘a check-list factor’. It is, said Ryder LJ, ‘plainly an example of domestic jurisdiction giving force to a fundamental principle of procedure’.

 

‘A case about children’s rights’

 

CA 1989 was a clear, well-thought out and well-expressed piece of legislation which was broadly welcomed by anyone who came into contact with it. It was a credit to family law. A couple of years later a real blot on family law reform appeared on the statute book: Child Support Act 1991. Amended to twice its length, with infinite permutations of subsidiary legislation the 1991 Act is still there. It was designed for children’s benefit as well, but it gives them no rights or permission to be involved in its Kafkaesque administrative intricacies.

 

Early in her time in the House of Lords Lady Hale was in a minority of one in a child support case, namely R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42. Kehoe had decided, harshly, that a parent could not sue privately for their child’s maintenance. She could only wait for the Child Support Agency to fail, and then with appropriate funding she could apply for judicial review of the Agency’s dragging of its enforcement feet. Lady Hale started her speech by recalling childrens’ rights:

 

[49] My Lords, this is another case… which has been presented to us largely as a case about adults’ rights when in reality it is a case about children’s rights. It concerns the obligation to maintain one’s children and the corresponding right of those children to obtain the benefit of that obligation.

 

Children’s rights in 2019: thirty years on from Children Act 1989

 

So where are children’s rights 30 years on from the 1989 Act, and from the heady 1980s which gave child law Gillick, Cleveland, and the UN Convention?

 

First what are the rights in real terms and as a party to family proceedings (considered more fully at Ch 6 in Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional ). The contexts in which a child’s understanding is critical to their involvement in proceedings arise as follows:

 

  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); eg Re CT (above));
  • A child who wants to join in proceedings: that is to make a separate application (with or without representation in existing proceedings) (eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P).
  • Within existing private law proceedings, to dispense with a court-appointed guardian and proceed alone or represented by his/her own lawyer (eg Mabon v Mabon (above));
  • A child whose instructions to his or her instructed solicitor conflict with those of the children’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (FPR 2010 r 16.29(2)(a)); and
  • A child who wishes to pursue fresh applications alongside a care order made in earlier care proceedings and wants to instruct a solicitor where the child’s views conflict, or are likely to conflict with the children’s guardian (FPR 2010 r 16.29(2); Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 (‘Re W (Child’s Representation)’).

 

But, and this is a major ‘but’, a child only has rights if that child can understand what her rights are and how to exercise them; and over these two points hang substantial question marks. As will be shown Black LJ (now Lady Black in the Supreme Court) found the law as to a child’s representation in Re W (Child’s Representation) ‘of complexity’ (and, in the end, the Court of Appeal got the law wrong in that case). If Lady Black gets elements of the child representation rules wrong, what chance have the rest of us? And – which is what we are concerned with here – what chance has a child to find – and understand – the rights answers?

 

Finding the answers on representation and assessing the impact of Children Act 1989 on children’s rights will be dealt with in Part 2.

Anonymity for pole dancers

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Private hearing; but when to be anonymised?

 

If you have to tell a client whether their family court hearing will be dealt with anonymously or not (ie their names to remain confidential), the best thing they can do is toss a coin – certainly if their hearing is before a High Court judge. Hearings of family cases under Family Procedure Rules 2010 (FPR 2010) are – says a court rule (FPR 2010 r 27.10) – to be ‘in private’. That does not tell you whether your name will be public or not, save in the case of a child and (probably) of parents in children proceedings. Just because your case is heard in private is no guarantee your name will be kept secret.

 

For example, of all the first instance financial relief cases in front of High Court judges, over the past ten months, seventeen were reported; and of those seventeen, only four were anonymised. The remaining thirteen were all between named parties. Because the hearing is in private does not mean the parties will be anonymous. This proposition – the link between a private hearing and anonymity – draws support from CPR 1998 r 39.2 which treats as one step that parties may seek an order for a hearing (or part of it) to be in private (r 39.2(3)). Anonymity is dealt with as a separate application to the court under CPR 1998 r 39.2(4)).

 

In the Court of Appeal your name will unquestionably be public (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426), unless for exceptional reasons – see summary in CPR 1998 r 39.2(3) – you can persuade a Lord/Lady Justice you should be anonymous; or that the appeal is by or on behalf or about, a child or, perhaps other protected parties (CPR 1998 Pt 21).

 

Application for anonymity

 

So, on what basis can a party seek to be anonymous in civil proceedings? This was considered in detail by Nicklin J in AAA (and others) -v- Rakoff (and others) [2019] EWHC 2525 (QB) (30 September 2019). The case concerned claimants, nine of whom were dancers and at a club known as Spearmint Rhino (the tenth claimant).  They brought proceedings seeking to restrain the defendant from using video footage it had obtained within the clubs. The first defendant was the chief executive of the second defendant, a group called ‘Not Buying It’, which campaigns against sexual entertainment venues.

 

The finer CPR 1998 aspects of the case can be found at ‘Service of the claim form issues, anonymity, expedited trials and … Spearmint Rhino’ . This article looks at the question of anonymity which was the preliminary issue in the case dealt with by Nicklin J.

 

Nicklin J explained that any application for anonymisation has two distinct parts: first an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 1998 r 16.2 (‘a CPR 16 Order’: perhaps PD16A para 2); and, secondly, a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO). Though the law outlined here applies in family proceedings there is no equivalent to CPR 1998 PD16A para 2).

 

Nicklin J draws on the INDO guidance, especially paras 9 to 14. He then moves to a tour de force to summarise the fundamental jurisprudence which underlies the open justice principle:

 

‘[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.’

 

The judge cited recent case law, namely R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (considered further here). Both of these cases were concerned with release of court material to non-parties. Elemental to both was the open justice principle on which English courts operate.

 

Open justice principle and anonymity

 

From these two important cases Nicklin J concluded:

 

‘[29] … That there are principally two categories of case in which derogations from open justice can be justified: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated: Attorney-General -v- Leveller Magazine Ltd [1979] AC 440, 457E…[and see Scott -v- Scott [1913] AC 417 per Viscount Haldane LC at 437-439].’

 

The second category of derogation – relating mostly to private matters – was summarised by Nicklin J as follows:

 

‘[30] Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses….’

 

The judge has form in this area of work. In AAA he provides a text-book summary of the law on open justice principles. And he refers a couple of times to Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB), (15 February 2018). When you look up that case you discover Nicklin J is the judge there as well. In both cases he shows how firm is his grasp of the relevant case law.

 

The conclusion for AAA and her fellow pole-dancers was that they would be denied anonymity (it does not seem they claimed a private hearing). The anonymity remains pending any appeal, and pending the disposal of that appeal if permission is given for it.

 

Khan and domestic abuse

 

From a family lawyer’s stand-point Khan is instructive. It was a harassment case between two brothers where both were refused anonymity, and were told their case would be heard in open court. Nicklin J made the following comment, which may be instructive when it comes to domestic abuse cases in family courts:

 

[90] … In most harassment claims, the disclosure of private information in open court is simply an incidence of the litigation and that is no different from any other civil case. But, unlike privacy claims, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court…. An anonymity order therefore cannot be justified on that basis. If there are discrete pieces of the evidence, that engage significant Article 8 rights, then the way to deal with that is not by blanket anonymisation, but by [targeted measures]. Put simply, any greater derogation from the principle of open justice is not necessary.

 

If anonymity is denied to two brothers, why not the same for couples who have been living together, and one (or both) make allegations that the other has been abusive? Unless the privacy interests of children are engaged (concerning which see Keene LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at [120]-[122]), there is no reason why domestic abuse cases should be heard in secret; and probably every reason why they should be heard in open court.

Committal to prison and children proceedings: Part 2

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Release of court material

 

The first part of this two part series looked at the appeal in the unfortunate case of Re Nasrullah Mursalin [2019] EWCA Civ 1559 (3 September 2019) in the context of Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) and Family Procedure Rules 2010 (FPR 2010) r 12.73; and especially at the extent to which a committal application needs guilty intent. An application that the administration of justice has been interfered with – which is what a committal application is – is a criminal contempt which may result in the defendant (accused?) being sent to prison.

 

It is worth recalling that contempt proceedings, albeit in civil and family cases, are treated as ‘criminal’ proceedings under European Convention 1950 (Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81, 85 and 86) so that a respondent has the rights guaranteed by Art 6.3.

 

In NM’s case, Baker LJ first recalled the ‘utmost seriousness’ of contempt proceedings. Therefore strict procedural rules must be followed. He mentioned the words of Vos LJ in Re L (a Child) Re Gous Oddin [2016] EWCA Civ 173 at [75]: ‘The process of committal for contempt is a highly technical one as this case shows. But it is highly technical for a very good reason, namely the importance of protecting the rights of those charged with a contempt of court.’

 

In cases of an alleged contempt, Vos LJ said, no-one should be at risk of being sent to prison for contempt of court unless they have notice of what is alleged, they information that they may remain silent, and that the application is proved to the criminal standard.

 

Where the circuit judge went wrong

 

Baker LJ (at [17]-[21]) listed what went wrong in NM’s case:

 

  • ‘[18] The appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him; [and NM] says he did not understand the significance of what was being said.’ If the judge thought proceedings against NM were appropriate he should have set out exactly the particulars of ‘the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice. It was not sufficient for the judge to proceed simply because the appellant agreed that he could do so.’ (European Convention 1950 Art 6.3(a).)

 

  • ‘[19] The failure to particularise the allegations led to a further defect in the process. So far as I can see from the papers, the judge was never shown the specific documents from the family proceedings which had been disclosed to the First-tier Tribunal. In those circumstances, it was impossible for him to gauge the seriousness of the alleged breach.’ He was entitled to plead mitigation, but without these documents any plea would lack substance (see eg Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55 (30 January 2019)).

 

  • ‘[20] There is little sign that the judge considered the extent of the appellant’s culpability for what had allegedly occurred…. It does not seem to have occurred to the judge that [the solicitor for who NM was working] may have been the real culprit. That omission stemmed from the failure to particularise the alleged contempt.’ This is the mens rea point (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA) discussed in Part 1.

 

  • The errors above were compounded by the judge’s direction to the appellant to go in the witness box. It seems he overlooked the fact that a defendant to an application for committal is not obliged to give evidence. The principle is of long standing, although it has been overlooked in other cases; see, for example, the case of Re Lcited above (and see Dougherty (above); Mubarak v Mubarak [2001] 1 FLR 698).

 

And to cap it all, a cosmetic complaint: any committal application must be in open court Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, [2015] 2 AllER 541. No one was robed, the Court of Appeal was told.

 

Postscript: material which can be released

 

As a postscript to all this: what can be released in children proceedings under FPR 2010? Despite what the provisions of s 12(1)(a) appears to say – that it will be a contempt if material is published from children proceedings – FPR 2010 rr 12.73 and 12.75 allow for some release of documents from family proceedings.

 

The operation of r 12.73 can be seen in Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), [2015] 1 FLR 1218. Baker J (as Baker LJ he was the judge in Nasrullah Mursalin) was dealing with an application by the police who wanted to see a judgment in which he had recorded that the father of a child had admitted, after the making of a care order, that he had perpetrated the injuries on one of three children.

 

The father applied for an order prohibiting the local authority or any other party from communicating any information to the police or CPS. The police filed a statement asking for ‘disclosure of any information that had come to light in these proceedings indicating the perpetrator of [the child’s] injuries “in order that the decision to prosecute that person can be taken”’.

 

Baker J explains the working of r 12.73 and its accompanying Practice Direction 12G. Rule 12.73(1) says:

 

12.73 Communication of information: general

(1)     For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –

(a) where the communication is to [various individuals and bodies such as the legal representative of a party, Legal Aid Agency, a court appointed expert etc, formally entitled to receive information];

(b) where the court gives permission; or

(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.

 

PD12G provides three tables which set out what communications in children proceedings can be passed on to particular bodies or individuals. Paragraph 2.1 is the first of these and sets out a table which deals with ‘any information relating to the proceedings’. The rule and PD table enable information to be passed on by specified individuals as of right – for example, a party, a legal representative or others lawfully in possession of the information – to other individuals or bodies and for specified purposes, other than the proceedings (eg information to a person conducting ‘an approved research project’). Communications under r 12.73(1)(c) and PD 12G paras 1 and 2, which may be made. Other communications, which under 12.73(1)(b) may only be made with the court’s permission.

 

In S v SP and CAFCASS [2016] EWHC 3673 (Fam) Baker J dealt with a committal application by a father who objected to a Cafcass officer who provided information to police when asked. The judge gave short shrift to S’s argument that this passing on of information was ‘publication’ as anticipated by AJA 1960 s 12(1), and dismissed the committal application.

 

Procedure for a committal application

 

Given the state of the rules which govern all this, it is perhaps not surprising that judges make mistakes. An application for committal for NM’s mistake, is ‘interference with the due administration of justice’ (since case law tells us that that is what a breach of AJA 1960 s 12(1) is deemed to be). Anyone looking at the rules has to know this and to know, therefore, FPR 2010 Pt 37 Ch 4 applies – I think….

 

The application under this Ch 4 must be with permission (r 37.13(2)). Application is to a High Court judge (FPR 2010 r 37.14) for permission. If this is correct, why was HHJ Mordifar dealing with this case at all? Rule 37.15 tells you how to make the application for permission; and that is all Ch 4 tells you. Nothing is said about how the court proceeds with the application itself once an application has permission; nothing is mentioned about the points made by Baker LJ above; and especially nothing is said about service of any application. The accompanying Practice Direction PD37A gives some tips on procedure generally, but says nothing about Ch 4.

 

All this is only if an individual is making the application. If it is the court proceeding on its own motion, the rules are silent altogether (as far as I can see). This may have been how HHJ Mordifar proceeded; though it is not obvious from the Court of Appeal judgment on what basis Judge Mordifar thought he was proceeding – except that he seems to have been cross that the family proceedings document had got into the Immigration Tribunal bundle. But judicial crossness is not a good basis for a criminal charge against someone who seems to have made a genuine mistake; and to have had no intent to do anything wrong.

 

It is hardly surprising that cases like NM’s go so badly wrong.

Committal to prison and children proceedings: Part 1

20190501_172208[1]

Committal of an unknowing paralegal

 

The suspended committal order imposed on the paralegal – set aside by the Court of Appeal in Re Nasrullah Mursalin [2019] EWCA Civ 1559 (3 September 2019) – was justifiably widely reported in the press at the beginning of September. It was another case where a circuit judge had failed to follow basic procedures. These two articles will look at the facts of the case and the background to the law. The second article will look at the law as it was applied – or not applied – in this case; and that will involve looking at the procedure for making a committal application which is by Family Procedure Rules 2010 (FPR 2010) Pt 37 Ch 4 which seems to have had no regard in either family court or Court of Appeal.

 

The appellant Nasrullah Mursalin (NM) was working for a solicitors firm which specialises in immigration law and family law. In the course of his work for a client he prepared and filed a bundle of documents for the Immigration and Asylum Tribunal. It is said that the documents included a number of papers from family proceedings involving the client’s children.

 

Baker LJ stated that as a result pursuant to Administration of Justice Act 1960 (AJA 1960) s 12 and FPR 2010 r 12.73 the passing on of such documents ‘would be a contempt of court unless the Family Court has given permission for the disclosure’ (at [2]). (As will be seen, Baker LJ’s assumption is controversial in itself: more than just passing on of documents is needed for contempt.) No such permission was obtained, or applied for. An application was made to commit NM. The court directed his firm to file a statement, which he prepared at the request of his employer. When the hearing was called on, and NM had arrived at court (at [6]) Baker LJ described the following exchange between him and the judge, HHJ Mordifar:

 

‘JUDGE: I have read your statement. For me to formally accept it, because it is not a sworn document I have to ask you to take the oath and confirm it as true whilst you are under oath, okay? It may be that you will be asked other questions about what has happened. What is at stake here is potentially a very serious breach of the court rules which in itself may lead to a committal which can carry a term of imprisonment of up to two years…. So, with all those factors in mind, if I ask you to take the oath, would you like to have the opportunity of seeking independent legal representation and legal advice first or do you want to proceed today?’

 

NM said he wanted the case dealt with then. The judge told NM that: ‘[8] The rules against disclosure are in place for very good reasons that include the protection of the parties and the children who are the subject of court proceedings…’; and he concluded by giving him ‘a six-month term of imprisonment that is to be suspended for six months beginning today’.

 

The Court of Appeal allowed his appeal and set aside the judge’s order. They were very critical of the way the judge had dealt with the committal application. So first, what is the statutory or common law source for of the committal application (this article, Part 1)? And then why was NM made subject to an application in the first place (Part 2)?

Part 1 involves dealing with the following:

 

  • Sources: AJA 1960 s 12(1)(a) and FPR 2010 r 12.73
  • Meaning of contempt at common law
  • The distinction between civil and criminal contempt
  • NM’s was a criminal contempt: so is it necessary for the court to find any guilty intention (mens rea).

 

(1)        Administration of Justice Act 1960 s 12(1)

 

The source of this case is AJA 1960 s 12(1)(a) which says:

 

‘12 Publication of information relating to proceedings in private.

(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor…’

 

This raises two immediate questions of construction: what is meant by ‘publication’ and what of ‘proceedings’:

 

To get off the ground a committal application must show there to have been a ‘publication’. What does that mean? In a print medium, on-line or a broadcast that is easy enough. In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J defined it as:

 

‘(iii)     There is a ‘publication’ for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.

‘(iv)     Specifically, there is a ‘publication’ for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, etc…’.

 

The person who receives the material must surely reads, or be intended to, read it?

 

And then ‘proceedings’? In Re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422, Balcombe J was being sked to make an order contra mundum (ie all possible publishers of information) for a ward. He needed to be satisfied that his order would go wider than s 12(1) ‘proceedings’; and for explanation of the meaning of ‘proceedings’ he referred to Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA. First Lord Denning MR at 88–89 said:

 

‘But none of those old cases considered the publication of information relating to a ward of court. There is no suggestion anywhere that it was a contempt of court to publish information about the ward herself, be it favourable or adverse, helpful or injurious to her. But these are cases to show that it was a contempt of court to publish information relating to the proceedings in court about a ward.’

 

Scarman LJ. said, at 93:

 

‘It is, I think, a necessary implication in all the speeches in Scott v Scott [1913] AC 417 that the cloak of secrecy was available to conceal from the world, not the life story of the ward, but only so much of it as was properly to be regarded as the subject of the proceedings.

 

He follows that up, after referring to section 12(4) of the Administration of Justice Act 1960, at  99: ‘what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. And ‘the judgment of Geoffrey Lane LJ is to the same effect’. Balcombe J was satisfied that he had jurisdiction, if he chose to use it, to make a contra mundum order.

 

(2)        Meaning of contempt: undermining administration of justice

 

The ill which contempt proceedings are intended to address is interference with the administration of justice. ‘Contempt of court’ is rarely appropriate as a descriptor. The meaning of the term was discussed recently in HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin) (9 July 2019), QB Divisional Court where Sharpe LJ said:

 

‘[25] Contempt of court is principally a common law doctrine. Its purpose is to protect the integrity of civil and criminal proceedings by imposing appropriate penalties on those who interfere with, obstruct, impede or prejudice the due administration of justice, or expose the process to risk that these consequences will follow. The label “contempt of court” has long been considered inappropriate. As Salmon LJ observed in Morris v Crown Office [1970] 2 QB 114, 129: “The archaic description of these proceedings as ‘contempt of court’ is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented: Skipworth’s Case, L.R. 9 Q.B. 230 and Rex v Davies [1906] 1 KB 32….”

 

(3)        Civil or criminal contempt

 

In Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 273 at 307H-308 Lord Diplock explained the difference between civil and criminal contempt:

 

  • ‘civil contempt’ consists of disobedience to a court order by one party to proceedings (for example, a person who allegedly breaches a domestic abuse injunction, or fails to comply with a CA 1989 s 8 prohibited steps order); and

 

  • ‘criminal contempt’, which Lord Diplock defined as (at 308C-D and 310G):

 

‘… It must relate to some specific case in which litigation in a court of law is actually proceeding…. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.’

 

Committal for criminal contempt turns ultimately on whether an alleged contemnor has undermined the administration of justice. The contempt may take a number of forms (eg breaches of privacy of proceedings; dishonesty and statements of truth etc). Contempt of court under AJA 1969 s 12(1) is a matter of undermining administration of justice.

 

Lord Diplock explained this form of contempt in Attorney General v Leveller Magazine Ltd ([1979] AC 440 at 449):

 

… Although criminal contempts of court make take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.

 

(4)        Guilty intent (mens rea)

 

An application where s 12(1) is said to have been breached is a criminal contempt, for which a person may go to prison; yet on what charge and is any intent (mens rea) involved. This was considered by the Court of Appeal in Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA where the court (Lord Denning MR, Scarman and Geoffrey Lane LJJ) were considering as application to commit the editor of the Daily Telegraph (and a Slough newspaper), where they had published information about a ward, but where they thought – wrongly as it turned out – her wardship had ceased. Lord Denning MR made the point on this question, even if they had not exercised ‘reasonable care’ then (at 90-91)

 

‘… [This] does not mean there was any guilty knowledge or intent. I base my decision on this simple ground: The offence of contempt of court requires mens rea — guilty knowledge or intent. None such was proved to exist in the two newspapers. They were, therefore, not guilty. I would accordingly allow the appeal.’

 

Scarman LJ summarised his view of the law on intent (at 100):

 

‘… That in this class of case — publication of information relating to proceedings which the court has ordered to be in private — no contempt is proved unless it is shown that the publisher knew that he was giving information relating to court proceedings and that the proceedings were private proceedings.’

 

Geoffrey Lane LJ (at 107) held that ‘honest mistake is a defence providing that had the mistaken circumstances been true, no offence would have been committed. The section is not intended to enlarge the scope of the offence as it existed at common law.’

 

Family Procedure Rules 2010 r 12.73

 

FPR 2010 r 12.73 is a rag-bag of a provision. It permits information from the proceedings to be ‘communicated’ to certain individuals (‘a party’ – really?; a party’s legal representative’ the Legal Aid Agency and so on) but it does not say who may communicate this information. It is said to be ‘for the purposes of the law relating to contempt’; but what does that mean. A court rule cannot create an offense; nor can it create a defence if someone is otherwise in contempt.

 

This provision and AJA 1960 s 12(1)(a) and the common law offence of contempt of court will be considered in Part 2.

Open court hearings: thoughts for family law reform

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1        INTRODUCTION AND BACKGROUND

 

Straws in the wind

 

Work has been done by the President, Sir Andrew McFarlane P, and his predecessor on publication of judgements; and ‘legal bloggers’ are allowed into courts otherwise closed by Family Procedure Rules 2010 (FPR 2010) r 27.10. A new draft practice guidance – not a practice direction? – is at large (in draft or made as guidance?) on ‘Guidance as to reporting in the family courts’.

 

The Family Procedure Rules Committee (FPRC) has ruled that hearings under FPR 2010 (unless otherwise stated) are to be ‘in private’ (FPR 2010 r 27.10); but what this means beyond the actual hearing of the case (eg as to release of documents and information to those attending court, anonymisation, publication of material from a hearing and so on) is not clear.

 

Perhaps the time is appropriate for review of the following:

 

  • What is the position of release of court material after Guardian v Westminster (below) and Cape Intermediate v Dring (below);
  • If the Supreme Court can release parties’ skeleton arguments (see in R (on the application of Miller) v The Prime Minister [2019] UKSC 41 (24 September 2019)) cannot other courts do so, anonymised where suitably directed;
  • Is it time for review of Sir James Munby P’s Transparency

 

Open court: the default position

 

The default position for all common law litigation is that it be heard in open court, unless exceptional circumstances dictate that part or all of a hearing be heard privately. In the recent R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster) Toulson LJ explained this as:

 

[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….

 

In the recent Supreme Court case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (29 July 2019) the court was considering the jurisdiction of the courts generally to permit release of court material ton non-parties. Of the context for their decision they said:

 

[34] …However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.

 

All courts at whatever level are subject to the open justice principle.

 

Family proceedings and open justice

 

Family Procedure Rules 2010 (FPR 2010) r 27.10 says that all hearings’ or family ‘proceedings’ should be in private save where stated otherwise (eg divorce: r 7.16(1)):

 

27.10 Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise.

(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.

 

In Guardian v Westminster Lord Toulson emphasised the substantive law – the common law – source of the open justice principle:

 

[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.

 

In Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and see the same point in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75) Lady Hale said:

 

[27] [Court rules cannot] change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210

 

The power to make FPR 2010 is delegated to the FPRC by Courts Act 2003 ss 75 and 76. There is no power, vested in FPRC by ss 75 or 76, to rewrite the common law in relation to open justice. It is likely that, if challenged, r 27.10 would be found to be ultra vires the rule-makers (ie outside the powers given to them by Parliament). Perhaps that is for another day….

 

Open justice and related issues

 

For the present it is necessary to recall that open justice principles apply also to other aspect of court proceedings; and to accept, for now, that FPR 2010 rule-makers have the power to alter the common law. The hearing may be ‘in private’; but what of other open justice related issues (Guardian v Westminster was about a press request for documents after a magistrates’ court extradition proceedings hearing). Such open justice related issues include:

 

  • Release of documents prior to a hearing to help anyone one (eg a journalist under FPR 2010 r 27.11(2)(f)) to understand what is happening;
  • Release of documents after a hearing (Cape Intermediate v Dring);
  • Publication of a judgment anonymised or not
  • Reporting restrictions orders; and – especially – for how long (and for how long are parties to be embargoed from releasing, or the press from publishing, material in the case?
  • Anonymisation or parties, and of witnesses (eg witnesses, especially experts, social workers, accountants, medics and valuers)

 

In law, all of these topics start from open justice principles; but none are related directly to whether or not a hearing takes place in private. FPR 2010 r 27.10 does not necessarily apply.

 

Hearing in ‘private’

 

Although each of Administration of Justice Act 1960 (AJA 1960) s 12(1), FPR 2010 r 27.10 and CPR 1998 r 39.2(3) speak of hearing ‘in private’, only r 27.10 tells us that ‘proceedings held “in private”’ means the public have no right to be present. Case law tells us a lot more. This was explained in ‘Private hearing, in secret and in chambers’. So what then are the consequences of a hearing being held ‘in private’?

 

 

2        AREAS FOR REFORM

 

Areas for immediate review or reform

 

The areas referred to above for reform can be boiled down to:

 

  • Anonymisation of parties and of witnesses.
  • Release of documents prior to a hearing, with permission of the court.
  • Release of documents after a hearing to non-parties (Cape Intermediate v Dring), with permission of the court.
  • Publication or ‘use’ of disclosed documents.
  • Publication of a judgment anonymised or not
  • Reporting and other restriction orders: for how long?

 

This note will touch on the first to the fourth of these.

 

(1)        Anonymisation

 

I know work is being done in other parts of the common law jurisdictions on this. I will only mention it here because, in a case which is to be dealt with privately, anonymisation on terms directed by the court, or agreed by the parties, will be important early on. Any documents – such as skeleton arguments, statements (without enclosures) etc – released to non-parties (eg to the press; under (2) in the above list) – can be suitably anonymised from an early stage in proceedings.

 

By the way, calling parties first, second etc ‘respondent’ does not anonymise them: it just confuses the reader, especially when the case may be entitled Re x. And then in the Court of Appeal the parties may all be something different. Please give the parties names, or – if anonymised – false names or letters. (One case I was involved in recently the judge just took all the initials and moved them one place in the alphabet: I am not sure that was much by way of anonymisation.)

 

(2)        Release of material prior to hearing

 

Because a hearing is in private does not mean material cannot be release from, or in relation, to it. FPR 2010 r 29.12 says:

 

29.12 Access to and inspection of documents retained in court

(1)  Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open 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 such permission.

 

In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J said – obiter (ie it was not part of his decision, and is not therefore law) – that

 

[13] … 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. Further still, PD 27B paras 2.4 and 5.2(b) confirm the ‘unaffected’ continuance of the existing reporting restrictions for such proceedings held in private….

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

 

This comment is open to three main criticisms:

 

  • Parliament does not ‘pass’ rules. They do not have the weight of statute. They are made by delegated authority under Courts Act 2003 (as explained above) and by the negative resolution procedure: Courts Act 2003 s 79(6))

 

  • It is impossible to see that r 29.12(1) says what Mostyn J says. It specifically says that with permission ‘any person’ (ie including a non-party such as the press) with permission can inspect documents and can take copies.

 

  • FPR 2010 r 29.12(1) must be looked at alongside CPR 1998 r 5.4C.

 

The nearest equivalent in civil proceedings to r 29.12(1) is CPR 1998 r 5.4C(1) and (2) (though this rule deals with non-party access, specifically, which would – of course – include the press):

 

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 statement of case etc; any judgment etc].

(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.

 

The working of this rule is dealt with in Cape Intermediate v Dring (see the next part of this note); but it is important to mention it here because its reach goes to all court proceedings (civil (including family) and criminal); and in principal it can apply to pre- and post-hearing documents as appropriate.

 

Guardian v Westminster concerned an application after the hearing for documents; but there was a helpful discussion by Toulson LJ, especially at [33]-[35], of the reason for pre-hearing disclosure. He explained the need for this to bring modern practice of courts – where a lot of reading is being done alone by judges – into line with the need for an open system of justice.

 

(3)        Release of material after a hearing; access by non-parties to court material

 

In Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) the issues were summarised by Lady Hale (who gave the judgment of the Supreme Court: 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?
  • 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 case applies to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). The decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster.

 

[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.

 

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?

 

The case gave the court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to 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 and note in [33]-[35] of Guardian v Westminster).

 

The court held that a court could give permission for release to a non-party the following (see [9] to [11]):

 

  • The routine documents summarised in CPR5A1 para 4.2 (above); but not including, necessarily, trial bundles.

 

  • In its inherent jurisdiction the court generally, has jurisdiction to permit non-parties to obtain certain documents (see eg 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 in the Court of Appeal 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]).

 

If documents are suitable anonymised and to accord with principles of open justice – at least for those permitted into court: FPR 2010 r 27.11(2) – the question must be: why cannot any of these documents be released to non-parties (subject to any issue which arises under AJA 1960 s 12 and ‘the implied undertaking’)?

 

(4)        Incidence of the ‘implied undertaking’

 

Alongside release of documents to non-parties must also come the question of the ‘implied undertaking’ as to release of documents which a party has been compelled to disclose (eg by the requirement for full and frank disclosure in financial relief proceedings).

 

The undertaking has been codified in CPR 1998 r 31.22(1)-(3) as ‘subsequent use of disclosed documents’ as follows

 

Subsequent use of disclosed documents…

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

(3) An application for such an order may be made –

(a) by a party; or

(b) by any person to whom the document belongs.

 

It can reasonably be assumed that this rule in this form applies to family proceedings (see discussion in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565); but then the question is, was the hearing ‘in public’. If not and the hearing was ‘in private’ which of the definitions above applies?

 

CPR 1998 r 5.4C deals with application by a non-party. Rule 31.22(1)(a) deals with the extent to which a party can publish documents. The consequence of the rule in Clibbery v Allan – which has not been altered by the subsequent making of FPR 2010 – is that a party to proceedings can ‘use’ (ie publish, as did Ms Clibbery) a document disclosed in proceedings heard ‘in private’ where it has been read by the court; or otherwise with permission or agreement of her opponent (neither of which applied).

 

All of this is most emphatically subject to the statutory restraints of AJA 1960 s 12(1); but for most family proceedings purposes, only s 12(1)(a) (ie children proceedings) applies for open court hearings.

 

The party who wishes to publish following a hearing – say to pass to the press details of her husband’s financial dealings after the hearing – must decide whether the judge has ‘read’ the documents concerned. If so, the fact that a hearing was ‘in private’ – at least on the case law of 1999-2004 – suggests there is no breach of the ‘implied undertaking’. If there is the remedy is private, not the criminal contempt implied by AJA 1960 s 12 (Attorney General v Leveller Magazine Ltd [1979] AC 440).

 

Proposals for reform will follow in a later article.

Private hearing, in secret and in chambers

20190501_172208[1]

What is ‘private’: a need for clarity in law

 

Both sets of relatively recent court rules – Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – use the term ‘private’ of court hearings, but without any attempt in either to define ‘private’. More seriously the earlier Administration of Justice Act 1960 s 12(1) uses ‘private’ without any attempt in the Act to define it. I say ‘more seriously’ because s 12(1), in its inscrutable way, suggests that publication of information from certain types of proceedings ‘in private’ may be a ‘contempt of court’. A person found to be in contempt may be sent to prison. But why should anyone be sent to prison if they don’t know that what they have done is wrong because ‘private’ is not defined?

 

Lord Bingham’s first rule of law, in his David Williams memorial lecture in 2006 concerned clarity in law:

 

‘First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.’

 

This accessibility is most obviously associated with criminal proceedings, but it applies generally to all law. In the case of contempt and imprisonment for a possible breach of court privacy, it assuredly applies. If you don’t know that a court is truly sitting ‘in private’, or – worse still – it perhaps should not be sitting in private, then can you still be sent to prison for alleged breach of the law. If you are threatened with prison the condition for that – what you may publish from a ‘private hearing’ – depends on its defining condition, that the court is ‘in private’ and what that means, in law.

 

Each of the statute and sets of rules have interpretation or definition sections; yet none of them say what is meant by ‘private’, save that FPR 2010 r 27.10(2) says what it is not: namely ‘proceedings at which the general public have no right to be present’. I will therefore set out the relevant provisions and then set out what the courts have said to explain ‘private’.

 

‘In private’: statute and rules

 

AJA 1960 s 12(1) under the heading: ‘Publication of information relating to proceedings in private’ says:

 

‘(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b)where the proceedings are brought under the Mental Capacity Act 2005 [etc];

(c)where the court sits in private for reasons of national security…;

(d)where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e)where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.’

 

Nothing is said here about the main variety of family proceedings, save children proceedings. Such proceedings – especially financial proceedings – may be caught by another common law rule, namely that a party may not publish documents disclosed under compulsion (eg ‘full and frank disclosure’)). Subject to that publication of documents and other material from family proceedings other than children proceedings appears not to be caught by s 12(1), even though a hearing was dealt with ‘in private’. (I add, though it is of little direct relevance here, that Children Act 1989 (CA 1989) s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ a  child involved in proceedings; but the prohibition comes to an end once the proceedings have been concluded (Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11; Re J (A Child) (contra mundum injunction) [2014] 1 FLR 523, [2014] 2 FCR 284 Sir James Munby P).)

 

CPR 1998 r 39.2(1) requires that all civil proceedings be in public, save as set out in r 39.2(3), the main part of which says:

 

‘(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

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

(b) it involves matters relating to national security;

(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;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;..’

 

And finally, FPR 2010 r 27.10(1) says:

 

Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise.

 

‘In private’ and the common law

 

In the absence of any statutory definition of ‘in private’, in secret and so on, what does the common law say, what do the judges say. The subject of what is meant by private (or in chambers) in the period since the drafting and introduction of CPR 1998, really comes alive with Forbes v Smith [1998] 1 All ER 973, [1998] 1 FLR 835, Jacob J (21 December 1997) where he gave permission to publish a judgment given in chambers in bankruptcy proceedings. In so doing he said (at FLR 836):

 

‘The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets’ case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents.’

 

Less than two months later, at a time when the Civil Procedure Act 1997 had been on the statute book for a year, and drafting of what became Civil Procedure Rules 1998 was well under way, the Court of Appeal gave judgment in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (12 February 1998). The case concerned claims against a tobacco company, on behalf of a variety of claimants. They said their cancer gave them a cause of action against the company.

 

Public access to chambers hearings

 

The court reviewed the ‘exceptional’ circumstances for hearings in camera recognised in Scott and emphasised the distinction between ‘chambers’ on the one hand and ‘secret’ and or ‘private’ hearings on the other (at 1070). The judgment of the court was given by Lord Woolf MR who was then chairing the committee which was preparing CPR 1998:

 

‘A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in [Scott] or the court sits in chambers and the case falls in the categories specified in [AJA 1960 s 12(1)] (which include issues involving children, national security, secret processes and the like).’

 

The difficulty the court confronted (as they put it at 1071) was that the subject of what was meant by ‘private’, in chambers etc was ‘virtually free from authority’. There was nothing in case law to guide them. They, the judges, must therefore frame the law. They did so in the light of their assertion of clear principle:

 

‘However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted.

 

It is clearly stated that as far as possible public should have access to chambers hearings, and to what happened at hearings – that is publicity including of judgment. This will always be subject to the exceptions in AJA 1960 s 12(1). And this statement of principle from the Court of Appeal was re-enforced by a differently constituted court in Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, CA (judgment on 30 September 1999)

 

[24] We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in [Hodgson v Imperial], in which he said (at 1071), that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.

 

Clibbery v Allan

 

So far as there was then, or is now, any distinction between the two types of proceedings, the case law so far relates to civil proceedings. Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 saw the Court of Appeal looking at whether documents from a family hearing ‘in private’ could, even so, be passed on for publication to the press. They held that such publication was permissible. Dame Elizabeth Butler-Sloss P considered Hodgson and provided the following definition:

 

‘[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.

 

Dame Elizabeth summarised a variety of circumstances where in family proceedings – then governed still by Rules of the Supreme Court 1965 and County Court Rules 1981 alongside Family Proceedings Rules 1991 – were conducted in chambers, sometimes because the rules said so, sometimes merely out of undefined habit or practice.

 

In Department of Economics, Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] EWCA Civ 314, [2005] QB 207 the Court of Appeal – Mance LJ – provided a synthesis of their earlier decisions in Hodgson and Clibbery v Allan. The case concerned whether a judgement in an arbitration should be published where, as a result of a mistake, a summary had been published by Lawtel. The judge said no: arbitration proceedings were generally in private. The Court of Appeal allowed publication of the summary, but said the judgment as a whole should remain private.

 

Mance LJ referred to what Dame Elizabeth had said, seconded by Keene LJ,

 

‘[26] Keene LJ agreed with Dame Elizabeth Butler-Sloss P and endorsed (at [120]–[121]), “the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified”, adding that “in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private”. He observed that the burden of showing that such an application falls within one of the exceptions to European Convention 1950 Article 6(1) “is likely to be particularly difficult to discharge where children are not involved”.’

 

Scott v Scott: no absolute rule of open court

 

There is no absolute rule as to when a case should be heard in private or in open court: R (Pelling) v Bow County Court [2000] EWHC 636 (Admin) QB Div Ct reminds us of that point. Subject to that and to the constrictions of s 12(1) anyone who wants to go into a private hearing or to publish a judgment from a chambers hearing is entitled to draw attention to the fact that the statute law and rules neither of them clearly say what is meant by ‘in private’.

 

The common law asserts – or appears to do so – that there remains a distinction between open court hearings, hearings ‘in private’ and hearings ‘in secret’. At the very least, in the absence of any court order to the contrary (the Moscow case was an arbitration, and there was a contrary order) judgements from a hearing ‘in private’ can be published.

 

Such as it is, attendance at private hearings and publication of judgments from chambers hearings (subject to exclusion by AJA 1960 s 12(1) and CA 1989 s 97) is what the case law seems to say; and in the 20 years since Hodgson, its comment that the law on this subject was ‘virtually free from authority’, still applies. Authority on what is ‘private’ remains sparse.