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.

A Burgundy diary – 30 October 2020

Tour de Grosme

I went down to my – I think of it a little as ‘mine’: I think I only share it with foxes, wild boar and other wild animals. Yes, so I went to my Tour de Grosme this afternoon. Autumn begins to sink on the year. Grosme is a lovely place: dark, it mysterious stones and fallen walls hiding another world, as it nestles in the trees. Periwinkle carpets its hidden floors. Boulders mutely call to what once was. It is a modest castle nestling below the sheltering hill and forest. stands above the valley which spreads out between Creusefond and Veuvrotte. And I think it is nearly quite forgotten.

A tree has recently fallen, pulling up stones of an already deteriorated wall and blocking a small path – a fox, badger or boar’s path, I suspect (the fall won’t bother them). Other trees rise from other already crumbling walls. Give it two more generations, and I suspect any walls still standing – there aren’t many – will further dissolve and just fall down.

Do I mind? Would I want a wild place like Grosme to change or be researched? Or should my tour just be left to melt back into the side of the hill? For me – if I were asked – I’d say no. I’d like us all to understand more about that small medieval site. It should not be manicured or closed and fenced off (the French have a passion for fencing off places like that). But its decline should be paused, stopped even. Keep the periwinkle carpet, please; but stop the roots on recent trees and certain other vegetation from slowly destroying what is left.

David Burrows

30 October 2020

A Burgundy diary – 18 October 2020

We cycled down to the market this morning. Lucie asked me if I had any gloves. I don’t need gloves, I said. The first part of our trip is a run down the hill. At the bottom there was still autumn cold mist. Threads of more mist rose from the pond, slim egrets priesting its edge. And by then – not ten minutes from home – my hands were frozen. They were painful for the rest of the fifteen minute journey; and I didn’t feel my fingers comfortably for another fifteen minutes after that.

Coming back, the mist had cleared. We rode back through fallen acorns, and a few leaves and twigs on the voie verte. Clouds are now high, slow-moving. Colours change in the distance. The autumn day is almost windless. That other world of covid-19, of climate crisis and of assaults on lefty lawyers and their clients seems to be somewhere else.

Letter from a leftie lawyer: 16 October 2020

Review of judicial review

This is not really a letter from a leftie lawyer, but my reply to the Tories’ review of administrative law (ie mostly of judicial review)

INDEPENDENT REVIEW OF ADMINISTRATIVE LAW[1]

Response from

David Burrows

Solicitor advocate

Introduction: judicial review and separation of powers

Why judicial review? It is to give judges – who are independent of the executive and of the legislature – the ability, on application by a private individual, to review the administrative decisions made by or on behalf of the state or other public body.

In the United Kingdom we do not have a true separation of powers, whatever Montesquieu may have thought. If one accepts for now that a separation of powers regards the executive, the legislature and the judiciary as having separate powers, in UK the executive – Prime Minister and his cabinet – are part of the legislature.

The judiciary are broadly independent of legislature and executive. They can supervise the executive and be a check on what they do in constitutional and rights law terms; but in United Kingdom law they are subsidiary to Parliament; and judges frequently acknowledge that in their judgments and their disposal of cases. I will deal with this later.

By any objective and fair standard, a responsible government should recognise its powers must not be unlimited; but that there should be certain checks on what it does from an independent body, such as the judiciary. This has been understood for most of the period since 1689.

The present government must face the political fact that to inhibit judicial checks on, or review of, its work is part of the ‘slippery slope’ towards fascism which is so fashionable amongst some modern governments. This is a political debate, led by politicians who are not in the British tradition of understanding the balance of political institutions. The members of the review panel must please try to understand the important principles which the likes of our present Home Secretary and Prime Minister (especially) seem unable or unwilling to understand

Focus of ‘Independent Review’

The panel asks for the following to be considered:

1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

3. Whether, where the exercise of a public law power should be justiciable:

(i) on which grounds the courts should be able to find a decision to be unlawful;

(ii) whether those grounds should depend on the nature and subject matter of the power; and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”,[2] and, in particular:

(a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

(c) on possible amendments to the law of standing;

(d) on time limits for bringing claims,

(e) on the principles on which relief is granted in claims for judicial review,

(f) on rights of appeal, including on the issue of permission to bring JR proceedings and;

(g) on costs and interveners.

Saving of costs

I understand that costs savings is not a primary concern of the review; but it is to be hoped that it can be considered. In what follows I mention a number of areas where a change in the law and of the rules could promote costs savings, of benefit for the tax-payer and for the parties. These include:

  • More use of district judges in the Administrative Court especially at the permission stage
  • Streamlining of disclosure (duty of candour) and close control on the extent to which documents and other material is relevant to any judicial review issue
  • Drawing in judicial review procedures to other civil proceedings with a public law element (I mention especially family law and child support, two of my specialist areas)

Structure of law

For present purposes I will assume the law to be substantive and procedural. Substantive law consists of statute law (passed by Parliament) and common law (judge-made law). The latter can only be altered by the former (ie not by rule or (mostly) by other delegated legislation). Most judicial review law is common law; though limited aspects of it are codified in Senior Courts Act 1981 and procedural rules (notably Civil Procedure Rules 1998 Part 54).

The first three questions above mostly go to substantive law. I have my own views on this area; but I am sure many – better qualified than I – will comment. I will restrict my reply to the fourth question on procedural aspects.

First I will explain my experience of practice generally and then of judicial review. Attached is a form of curriculum vitae which shows that I am predominantly a family lawyer; but in that capacity I dealt with a variety of legal aid work and (almost unique amongst solicitors) I did a variety of child support work. I have marked judicial review reported case I conducted as advocate with a * (though they are mostly obvious from their title). I am now largely retired; but I still have a small caseload. I write extensively on family law and related matters.

I do my own advocacy whenever I can. I am a founder contributor to the Family Court Practice (the ‘Red Book’: the family lawyer’s equivalent of the ‘White Book’). I am familiar with a variety of aspects of procedural law (eg my most recent book is on ‘Open Justice in family proceedings’ (October 2020) for the Law Society).

My experience of judicial review was mostly in child support – judicial review of the Secretary of State for Work and Pensions; but also in judicial review of the Commissioners and later the Upper Tribunal (it was my judicial review application for Mr Cart which eventually emerged in the Supreme Court as Cart v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, [2012] 1 FLR 997) and very occasionally of the Legal Aid Board (as it was). My experience there will, I hope, feed one or two answers below.

When a district registry of the Administrative Court was first set up in Cardiff in about 2008 I was in practice in Bristol and had a substantial proportion of its early cases.

PROCEDURAL QUESTIONS

I will divide my answers into:

  • Reply to the review paper
  • Further thoughts on procedure
  • Judicial review and family law
  • Limits to judicial ‘interference’

(1)        REPLY TO REVIEW

(a) the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

My short answer to this is that whether it is called ‘disclosure’ or ‘duty of candour’ they come to much the same thing; but both must be distinguished from public interest immunity (PII). So long as there is a clear basis for PII (whether common law or statute) – and it may be that that must be made statutory in the context of any administrative law bill – then beyond what is covered by any PII claim, the public body should open its file. However, it is important that this be in respect only to information relevant to the claim, in clear terms, so that ‘disclosure’ should not be carte blanche and be relevant only to issues in the judicial review claim.

‘Government’ need be no exception, so long as any relevance rules are written tightly so as not to inhibit progress of case; and not to waste the court’s time. 

(c) on possible amendments to the law of standing;

No comment

(d) on time limits for bringing claims,

I suggest 3 months is about right.

(e) on the principles on which relief is granted in claims for judicial review,

This is substantive law.

(f) on rights of appeal, including on the issue of permission to bring JR proceedings;

There must be a tightly controlled appeal process, as now; with a brief appearance available on permission hearings which could be dealt with by junior judges (see below).

There should also be the ability to applicant to reply to defendant’s summary grounds. My experience was certainly not that defendants were always as scrupulous as they should be about telling the truth to the court. High Court judges always believed the lawyers for the Child Support Agency and Secretary of State (with the honourable exception of such experienced judges as Collins J). They did not always tell the full truth; but to challenge them at the summary grounds stage was more or less impossible.

The Court of Appeal should keep its originating judicial review jurisdiction (Chief Adjudication Officer v Foster [1992] QB 31, [1991] 3 W.L.R. 473; Farley v Child Support Agency [2005] EWCA Civ 869 (a case of mine)).

(g) on costs and interveners.

Protected costs orders – I have read that the prime minister and Home Secretary are opposed to ‘lefty lawyers’ and to ‘do gooders’; but I hope still that the concept of the protected costs order will be retained in any review of the scheme. To lose the PCO idea would be a blot on the extent of the judicial review scheme.

Costs of summary grounds of defence – Similarly, the limit on defendant’s summary grounds costs should be retained, to keep a fair balance between applicant and defendant.

Stream-lining of procedure – That said, I am sure – as I mention below – there are ways procedure can be stream-lined and made more economic for both parties. This will then impact on costs.

(2)        STREAM-LINING PROCEDURE

The procedure for most judicial review is much simpler than most people – including experienced practising lawyers – think. With perseverance it may be possible to make it – in many cases – more simple still. Some thoughts follow.

All judicial review is dealt with by High Court judges; though in practice this may be by circuit judges and QCs sitting as High Court judges. It is a high judicial level which is assured to parties.

Is this necessary? Much of the child support judicial review work I did could have been dealt with, without any derogation to fairness, by district judges trained within the Administrative Court. Would it not be possible for Administrative Court district judges to deal with the paper-work stage of permission? They would know when to refer up, and they could define the level of judge to deal with any restored hearing.

I mentioned limits on disclosure and emphasis on relevance in the previous section.

(3)        JUDICIAL REVIEW AND FAMILY LAW

Below, under ‘Administrative law and family proceedings’, is a slightly abbreviated article on the extent to which administrative law and its principles could apply directly in family proceedings (published in Family Law in August 2020). This might considerably assist in both judicial review and family proceedings to the benefit of the parties, and to the saving of costs and multiplicity of proceedings all around.

For example in Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) (16 October 2009), HHJ Jarman QC, sitting as a High Court judge and related proceedings, the Secretary of State (for the CMEC) refused to join in the parties’ matrimonial proceedings in which the residue of financial relief proceedings remained to be resolved. Both sets of proceedings had to be dealt with in parallel court files in separate buildings at the extra expense to the tax-payer, HM Courts and Tribunal Service and to the parties. (The Smiths also saw their earlier child support proceedings considered by the House of Lords (Smith v Secretary of State for Work and Pensions & Anor [2006] UKHL 35, [2006] 1 WLR 2024, [2007] 1 FLR 166) but that is another story….)

(4)        LIMITS TO JUDICIAL ‘INTERFERENCE’

The role of the judge

The inverted commas above are important. I do not accept that there is any question of judicial ‘interference’ in our society; and I hope that Edward Faulks (as I knew him when we were at school together) would recognise that. Many of those involved in litigation – by definition – will disagree with a judge. Cases such as Oliver v Shaikh [2020] EWHC 2658 (QB) (8 October 2020), Nicklin J show the depth to which that disagreement can go with the very unfortunate His Honour Judge Oliver. Comments such as those of the Daily Mail, as judges being the ‘Enemies of the people’, an attitude unchecked by Faulks’s erstwhile ministerial colleague as ‘Lord Chancellor’, plainly do not help; and that should not be regarded as a political comment.

To attack a judge is cowardly. It is rare that they can defend themselves or answer back (as, in the end, did Judge Oliver) in any real or effective way.

It is important, however, for politicians to understand that our judges frequently defer to Parliament, and accept their subservience to the legislative branch of the three powers. Examples on this point in various public law fields follow.

Law reform: a matter for Parliament

In R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185 the Supreme Court showed itself willing to leave legal professional privilege, in this case legal advice privilege (LAP) – quintessentially a common law doctrine – to Parliament if there was to be reform. A company obtained advice from a firm of accountants on the tax law aspects of a proposed transaction. An inspector of taxes served notices on the company requiring them to deliver to the inspector documents containing information relevant to the company’s tax liability, including material passing between the company and the accountants during the giving of the advice. The claimant company challenged issue of the notices, including on grounds that the material sought was covered by LAP. The judge dismissed the claim. LAP applied only to advice given by a member of the legal profession. The Court of Appeal dismissed the claimants’ appeal.

A seven justice court dismissed the claimant’s further appeal (Lords Clarke and Sumption dissenting). At common law, said the majority LAP was universally understood as applying only to communications between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. The extent of the privilege was clear, consistent and certain. It was allowed for by the rules and practice of the courts and in legislation. If there was scope for reform, that was a matter for Parliament not for the judges.

Towards the end of his judgment (with which Lord Walker agreed) Lord Neuberger – who describes himself generally as “something of a swing vote” judge (p 182) – introduced a section entitled “A policy issue best left to Parliament” as follows:

[61] Apart from these concerns, it seems to me that this appeal gives rise to an issue, possibly a series of issues, of policy, which constitutes an area into which the courts should generally be reluctant to tread. Rather than extending LAP beyond its present accepted boundaries, we should leave it to Parliament to decide what, if anything, it wishes to do about LAP.

Judges not to extend any administrative role beyond what Parliament provided for

Where Parliament had entrusted administration to one branch of the state, judges should not try to extend that role beyond what Parliament had already provided for. This was emphasised in the period prior to Children Act 1989 (CA 1989) when on two occasions, at least, the House of Lords stressed that where parliament had given a job – in this case child care – to the local authority then wardship could not be used judicially to oversee the actions of the social workers. This was explained in the House of Lords in A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948 where a parent had sought to challenge operation of a care order by the local authority. The point returned in Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 where Lord Scarman spoke emphatically of the importance of the need to understand that where Parliament had “entrusted” powers to a public body, the courts cannot exercise any powers it might have to intervene (at 797):

… The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.

This division between state and private individuals was one of the principles on which Children Act 1989 was based. The A v Liverpool principle survives in relation to housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 a family court used a Children Act 1989 shared residence order to put pressure on a housing authority to provide housing for both parents. The House of Lords said this was not permissible. The existence of a shared residence order was a relevant, but it could not be regarded as a determinative factor for the housing authority. A family court, exercising its own jurisdiction under the 1989 Act, could not use the order as a means of exerting pressure on the housing authority to provide housing for a parent irrespective of all the other considerations which a the housing authority must take into account.

The family court has no power to control operation of a housing department. The point came back in the family courts more recently in F v M & Anor [2017] EWHC 949 (Fam), [2018] 2 WLR 178, [2018] 1 FLR 1217 where in a child arrangements order Hayden J was considering a decision on asylum made by the Secretary of State for the Home Department (the ‘Home Office’). He explained the mother’s position in this country as follows, and his powers to differ – if he wanted to do so – from the decisions of officials within the Home Office. He explained this (by quotation from Lord Scarman in Re W (above)) as follows:

[41] … The determination of the refugee status of any adult or child falls entirely within “an area entrusted by Parliament to a particular public authority”. In this case the public authority is the [Home Office].

David Burrows

16 October 2020


[1] ‘Independent Review of Administrative Law (IRAL)’ https://www.gov.uk/government/groups/independent-review-of-administrative-law

[2] The inverted commas here were inserted by the Ministry of Justice; though it is not clear why. To streamline a procedure is a respectable intent

Letter from a leftie lawyer: 15 October 2020

Faulks: bias and chair of the administrative law review

At the week-end I wrote a letter here about my response to the government’s ‘Independent Review of Administrative Law (IRAL)’ . My response is more or less complete. The review is ‘independent’ by no meaning of that word. It is chaired by Edward Faulks (orse Lord Faulks QC a former government minister and side-kick of failing Grayling as Lord Chancellor in his legal aid destruction phase) who cannot – by definition – be ‘independent’.

Faulks knows that when you have a personal or political interest in a question you cannot be independent. It is one of the most fundamental tenets of English law – and of society as a whole – that anyone who adjudicates must be impartial, that is free from bias.

‘A real possibility of bias’

I know that he is not acting as a judge; but honesty should have taught him that to chair a body such as he is to do must involve freedom from bias. In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Lord Phillips MR at [37] said: ‘Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve.’ Lord Hope spoke of the ‘fair-minded’ and ‘informed’ observer ‘who always reserves judgment on every point until she has seen and fully understood both sides of the argument’ (Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] WLR 2416 at [2] and [3]).

A judge must ask (as in Re Medicaments (above)) whether there is a ‘real possibility’ of bias.

Would ‘… a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased…’ (at [85]).

Faulks was part of the disastrous Grayling’s group of ministers in the Ministry of Justice when they nearly destroyed our legal aid system. He spoke enthusiastically in the House of Lords of the then proposed legal aid destruction. He still sits in the Lords (I assume) and takes the Tory whip. He cannot say he is independent of the present government.

If he had any real understanding of the legal tradition from which he comes – as I am sure he has – Faulks should declare his interest (ie his ‘bias’) and have the decency to resign the job to another person who can give it detached assessment. He should recuse himself (take himself off the job).

If Faulks stays, the work of this committee will be irremediably tarnished.

David Burrows

Letter from a leftie lawyer: 11 October 2020

Independent review of judicial review law

In the next couple of days I must write my response to the government’s ‘Independent Review of Administrative Law (IRAL)’. IRAL follows  a muted Tory election pledge is said to ‘exist to consider options for reform to the process of judicial review’. It is ‘independent’ in the sense that it is chaired by Eddie Faulks (orse Lord Faulks QC a former government minister and side-kick of failing Grayling as Lord Chancellor, especially in his legal aid destruction phase). I have written previously about Faulks’s arrogance and stupidity when, as a Government minister, he replied to a question on legal aid for exceptional cases (the government’s then – and still – threadbare ‘safety net scheme’ determination scheme).

It says nothing of a government which claims to want an ‘independent review’ that it appoints one of its own to chair the review. On that basis should I boycott the review? It is an element only of a charade mounted by this dire administration? Yes, but I think I must reply. Faulks & Co may regard what I say as irrelevant; but I think I must respond.

And all this as the Prime Minister and Home Secretary together have plumbed further Trumpian depths in their numbing way as they decry ‘leftie lawyers’ and ‘do-gooders’ (a pejorative term which you’d have thought went out with the 1970s?). Of the Prime Minister’s ilk, in many ways, what does Faulks think of these ‘leftie lawyers’? He was once a practising barrister. He must owe part of his wealth to legal aid (he was at the bar at a time when legal aid lawyers were fairly paid). How often has he conducted a judicial review application, I do not know? I am not aware that administrative law was any real part of his practice. Can we ask him?

Lawyers and judicial review

It is not lawyers of any particular political persuasion who conduct judicial review claims. The law is there to protect victims of administrative error or oppressions at all levels. We ‘leftie lawyers’ (many, I am sure, are not very leftie at all) do it, not to make a great living nor from burning political conviction. We do it because we think it is important that the executive – from ministers in all departments, down to civil servants and council officials – should follow the law which Parliament has defined; that rights should be protected for anyone at any level of society; and that therefore the administration should be accountable to a judge where

It is as important that someone’s rights be protected as that their health be looked after; and that the individual’s rights to both are fully respected. A remarkable case which deals with both elements – health and rights – was R (W a child by his litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) (21 May 2020). W is a UK national aged eight. He and his Ghanaian mother (J) had been in UK since 2009. She was granted leave to remain on the ‘10-year route to settlement’ renewable each 30 months and on condition that she had ‘no recourse to public funds’ (‘NRPF’: ie she was not eligible for almost all state benefits, including for her child). As a result she and W had periods of destitution including ‘street homeless’. They moved house repeatedly. W had moved school five times. Home Office case workers’ guidance was that only if a person is actually destitute – not imminently destitute – could NRFP could be overridden.

Faulks’s litmus test

Did this make the guidance incompatible with ECHR Art 3 (right not to be subject to torture or to inhuman or degrading treatment)? Yes said the court. The Home Department instruction was unlawful. The court made a declaration accordingly and a mandatory order that the Secretary of State should not impose or any NRPF condition in respect of the applicant and J. I have a horrible feeling that our present Home Secretary will promote legislation to change this. Would Edward Faulks be whipped in to support her? Can he be asked? This should be a litmus test: if he would obey such a whip he should not be chairing this ‘independent’ panel.

I will tell the inquiry that they must bear in mind that in United Kingdom we do not have a true separation of powers, whatever Montesquieu may have thought. The executive – Prime Minister and his cabinet – are part of the legislature. The judiciary are independent – for now… They can supervise the executive and be a check on what they do in constitutional and rights law terms; but in United Kingdom law they are subsidiary to Parliament; and judges frequently acknowledge that in their judgments and their disposal of cases (see eg the latter part of my ICLR book review of ‘Enemies of the people’ ).

That is an argument I must address to Lord Faulks and his group. Faulks and his Tory buddies must understand this. A belief in rights, like a belief in God, does not mean you are a leftie.

David Burrows

11 October 2020

A Burgundy diary – 1 October 2020

The first day of October; and from hot summer ten days ago we are now into full autumn. A ‘season of mists and mellow fruitfulness’ is upon us. Some rain has fallen; but not enough to replace the droughted months of summer. Grass is green again. The cows can munch in their fields. Song-birds dart and swirl everywhere. Wood-peckers clip their way up the pear-tree in front of me. And our local buzzard seems to spend a lot of time in the neighbour’s fruit trees – eating fruit? Surely not. Picking off small birds or hornets and wasps? I don’t know. (August’s plague of wasps seems to have gone; but one or two hornets remain to enjoy any rotting fruit.)

From June and the abundant cherry-time, there has been fruit everywhere: from peaches, through blackberries, strawberries and blackcurrants; and now on to plums, apples and quinces. Finally to our poires des cochons (as my neighbour calls them, a little unkindly, whether to the pears or those who eat them). These pears are hard, yes. They are too high to pick so we harvest them from the ground; but they are fine in a well-cooked tart or crumble; and – if I knew how to do it – I am sure they’d provide excellent pear cider or licquer of some sort.

It’s grey over the Morvan, almost lost in cloud; and if it is raining there it needs to come this way for our hills too. The horizon there rises and falls according to the weight of the cloud and the persistence of any rain, and whether I can see only the nearer or the further hills. Now the distant hill is dark. Wispy sun shines on the hills between; and even on the Morvan beyond. Cloud lours and moves across the granite distance. And an autumn wind blows.

David Burrows

A Burgundy diary – 16 September 2020

Romano-Gaulish trackway through Sully/Creusefond

Seven ages of Sully-le-Chateau

Sully-le-Chateau is the commune, in the Soane-et-Loire department where I live and where, for example – as one or two readers will know – I got married last year. What follows is a hack note and is written with all deference to M Niaux and his 1980 essa on this part of Burgundy. I have already written a little about some of what follows. I just want to reflect briefly on seven ages – or stages – in the history of Sully with Creusefond, starting from the Romano-Gaulish period; and, finally, with speculation on an eighth.

Sully is the name of the commune; and that is where the mairie is. Creusefond, where we live, is around four kilometres away. It is in our part of the commune that part of the massive forest which covers this area streches away in all directions and well beyond Sully/Creusefond. And this is where was a lot of the local coal-mining which I’ll come back to.

Autun is eleven kilometres away. Autun, the name is a contraction of the Roman Augustodinium. The area was plainly very important to the Romans whose early emperor made Autun his capital. Barely 25 kilometres from there was Bibracte which was a massive Gaullish site. You can see the hill it was built on in the Morvan from most places round here. And for Sully: there is at least one Roman pathway (see photo) through the Sully/Creusefond area possibly almost through our garden

Next, the second age, came the Moors (Maures, in French) whose names survive in hamlet and farm names: Noiron (just outside the commune, but so near I include it), Moreaux (obviously) and les Morins. They might have been for around three centuries (c 400-750: Battle of Tours was in 732), and have lived alongside the dark age Germanic Burgonde tribe who occupied the area from the fourth century onwards. The Burgonde gave Burgundy its name (closer to the English Burgundy, than the French Bourgogne) and are said to be associated with the stories behind Wagner’s Ring Cycle (a subject for another day).

Sully’s third age is represented by the early medieval thirteenth century Tour de Grosme. To my taste that tower and its surrounding remains are more authentic than the decorated and more effete Chateau de Sully. Of my seven ages the Sully chateau must be the fourth. It is a substantial structure and impressive, in its way. It is not a chateau fort as is the much smaller Grosme. Grosme, small though it is, is plainly cited to be prepared for local armed groups who were not friendly. It is a proper castle, not a grand family mansion. (I’d love to include my beloved eleventh century Curgy church in the early medieval period, but Curgy is a neighbouring commune and therefore out of bounds.)

The modern period is made up of three ages: a thriving village (I suspect) till after the Second World War; then a period of flight to the cities and takeover by supermarkets for those who were left; and then the railways (older and modern) and coal which I will take as a composite seventh stage. Of course the Revolution (1789 and anywhere up to 1815 and on), would have had its effects); but no obvious (or not to me anyway) vestiges remain. These three stages will be taken in the next part of this post.

David Burrows

16 September 2020

A Burgundy diary – 13 September 2020

Church at Curgy

Curgy’s must be one of the lovelier Romanesque churches round here. Unlike most it seems always to be open: each time I go there I fear it will be locked; but in visits I have paid over twenty years it has always been open.

Built in the 11th century – at least started then – it is in the simple style of this area, with few decorations. Its byzantine murals are classic, the stonework so simple (detracted from by nineteenth century small coloured figures of three saints): three bays and an apse; but I can let the stones speak for themselves.

The village is hidden away from the main road, around 5 kilometres (3 miles) from here. It is just over the hill (beyond Vergoncey: see yesterday’s post) between here and Autun. As you approach Curgy on small roads from here, you breast the hill and see a fine view of Autun and its cathedral with the tower of Curgy below. It has little else to recommend it beyond its sensational church: a modest bar, with a very small epicerie alongside, a struggling baker. It is evidence, I am sure, of the extent to which rural communities have to work hard to sustain themselves and their local services.

Curgy, Soane-et-Loire

The church at Curgy: May 2004

I sat in the unquestioning silence of the church.

The stones of the nave held inert

And deepened the gentle darkness.

A Byzantine mural,

Eyes clear and questioning,

Looked down

Wordless, yet eloquent of another age

Another faith,

Of other, perhaps deeper, thoughts.

David Burrows

13 September 2020

A Burgundy diary – 12 September 2020

Vergoncy: the apple-tree is in its second year

Seasons and drought in Burgundy

I have been in Burgundy for the ‘confinement’ for just over six months (with a week in July in Brittany, and therefore a couple of nights hidden away in Paris). It is the first time, since I was at boarding school, that I have spent two seasons (and continuing) in full countryside. (I have said before that from my house I can see only scattered farms; and I am part of a very small rural hamlet.) As things stand, with the virus taking harder hold once more, my stay seems likely to continue. That said, I must be one of a tiny number of net beneficiaries of this threat of illness (save that my wife must work in Paris, her employers lamely say). Whether the environment will benefit from all this, remains to be seen; but that is for another day.)

When my stay started in early March it was near winter. Desultory snow-flakes fell one Sunday afternoon; but no more snow. (The snow which normally falls in Burgundy seems to have been driven away by the climate crisis. I don’t think it rained at all in April; and mostly the sun shone then from a near cloudless sky. The various trees – wild and cultivated – burst into a glorious variety of leaf and blossom. Cherry blossom was everywhere. It was rich in our and neighbours’ gardens (cultivated); and dotted like light clouds through the forests and in hedges and fields. I feared for it. I knew that a frost could kill the nascent cherries; but no, we had a massive crop here and on wild cherry trees (these are wild cherries).

The dry April lead to a dry (a couple of single heavy storms here and there) May, June, July and August. And then a dusting of green was scattered by rain two or three weeks ago. Now it is deepening dusky gold again. Days are increasingly warm. Throughout this summer I have been so lucky that the stone walls of this farm-house keep the temperatures cool in the heat, and warmer as the temperatures drop. Outside my phone meteo says it is 27˚. The thermometer inside says it is 21˚.

Any risk of forest fires; thoughts of climate crisis?

My neighbouring farmer is cutting branches off trees for his Charolaise cows. He is digging up one of his fields looking vainly for a water source (spring) for them. Springs have run dry everywhere. The West coast of US is in flames. How long before the forests – an important industry in France – burn here? Behind us is a massive forest (Battee: mixed deciduous and pine). Away from where I sit is the Morvan, whose 19th century revival from poverty depended on it finding it could send its trees – of which there is still a vast richesse – by river, and sell them to Parisians. I can see the pines at this eastern edge of the Morvan from where I sit.

For now – without a car – I can cycle to Épinac (nearby village) market or its shops and small supermarket for almost all that I need. (I can ride mostly along a voie verte (one time railway line).) There is a doctor and health centre (unusual in France) and two – yes two! – pharmacies in Épinac. I can much more than subsist comfortably. Why add my bulk and breath, and my risk of illness to its health service, to Paris?

Meanwhile, there is little thought around here to the climate crisis. Cars are back as ever before. I don’t know to what extent people are staying at home to work. If they are, my feeling is they are using their cars as much as – or more? – than before. The TGVs are running again. How full they are I do not know. The three/four times a day (each way) bus service continues to run past my house (Autun-Chagny) with between one and no passenger. Sadly, unless people will use it, an administrator is finally going to work out its costs – capital purchase of buses, wages, administration etc – are earning nothing, and banish it.

I would guess there is a little less vapour trail from aeroplanes in the skies, which is a hopeful sign. A couple of French (I assume) military aircraft still fly over on most days. Surely there is a proportionately tiny saving to the French budget which could set a modest example?

Morvan horizon

David Burrows

12 September 2020

Similar fact ‘evidence’: civil and criminal

Curgy, Soane-et-Loire

Court control of evidence

Yesterday I was writing about similar fact evidence in family proceedings (R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 (18 August 2020)); and then today comes news (see eg Guardian) that the Germans, at least, think that the poisoning of Alexei Navalny – now in a medically induced coma – was attempted murder prompted by Russians. And that is much the same as what happened to the killing in Salisbury in 2018 of the former Russian spy Sergei Skripal and his daughter Yulia.

If ever those who allegedly poisoned Mr Skripal and his daughter were to be prosecuted to what extent could evidence of the subsequent poisoning of Mr Navalny be relied on by the Crown Prosecution Service to support their case? I will not answer authoritatively for criminal proceedings; but the same, or a similar, aspect of the same subject cropped up in R v P (above)children proceedings in the Court of Appeal in August. There are links for similar fact evidence in both areas of law – children proceedings and a criminal prosecution; save that in children proceedings the standard for proof of the similar evidence is only to the civil standard (more likely than not).

Evidence of coercive control

In R v P a father (F) applied for contact with his children aged 5 and 2. He had not seen them since the couple’s separation over two years before. Their mother (M) was alleging serious coercive behaviour (including lying to her parents and alienating her from friends and family). M’s evidence appeared to be corroborated by similar fact allegations as to F’s propensity to coercive behaviour in a later relationship with another married mother, N.

Case management issues arose on M’s proposal to adduce evidence from social workers (the court had already ordered two welfare reports – which were amongst the court papers – respectively in relation to the children of M and F and of N’s children), and from N’s children’s father and her parents. The judge refused to permit the similar fact evidence of F’s treatment of N, and on which M sought to rely, to be admitted in the children proceedings. M’s appeal was leap-frogged to the Court of Appeal by Cohen J, when he gave M permission to appeal (FPR 2010 r 30.13).

The Court of Appeal allowed M’s appeal. This was a judge’s case management decision. It turned on the powers of a court to exclude or admit particular evidence, said Peter Jackson LJ. Factors in the judge’s decision comprised (at [23] and [24]):

  • How should a case management judge deal with similar fact evidence in its control of evidence: FPR 2010 r 22.1?
  • Was the similar fact evidence relevant to the issues in the instant case, and, if so, should it be admitted in the interests of justice?
  • If similar fact evidence was to be admitted, to what extent was it hearsay and what rules applied as to is acceptance as evidence and weight to be given to it in children proceedings.

Was the similar fact evidence which M wanted to put in, sufficient for the court to treat it as relevant to one or more of the issues in her opposition to F’s contact application?

Case management and civil proceedings

On the relevant aspects of case management Civil Procedure Rules 1998 (CPR 1998) includes:

  • CPR 1998 r 1.4 which asserts a ‘duty [in the court] to manage cases to further the newly created ‘overriding objective’;
  • CPR 1998 Part 3 sets out the court’s ‘case and costs management powers’, notably its ‘general powers of management’ at r 3.1; and finally
  • CPR 1998 r 32.1 says the court has power to control evidence.

And these rules are now comprised in respectively (in broadly the same terms): FPR 2010 r 1.4, Part 4 (especially r 4.1) and r 22.1. The rule in question here is the last, namely FPR 2010 r 22.1. FPR 2010 Pt 22 is headed ‘Evidence’. Rule 22.1says:

Power of court to control evidence

(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may permit a party to adduce evidence, or to seek to rely on a document, in respect of which that party has failed to comply with the requirements of this Part.

(4) The court may limit cross-examinationGL.

The rule assumes certain powers in the court – to control evidence, to exclude ‘otherwise admissible’ evidence. These rules cannot now be seriously challenged; and certainly R v P assumes that the court is fully in control of what evidence may be heard (as must be the court in any prosecution of the killer of Mr Skripal and Yulia). In an application under r 22.1(3), the court can balance relevance against interests of justice (and the welfare of the children: not specifically mentioned by Peter Jackson J in the context of R v P).

Relevance, ‘propensity’ and R v P

Back then to R v P, and the similar facts asserted to the judge as relevant evidence by M in that case. In his appeal judgment (with which David Richards and Hickinbottom LJJ agreed), Peter Jackson LJ considered the subject of similar fact evidence as a whole in family proceedings in the context of two House of Lords authorities. First, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534 (a case cited by Peter Jackson LJ at [23]) Lord Bingham considered the ‘propensity’ of a party to behave in a particular way and explained his view as follows:

[4] That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. … To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it…

Lord Bingham’s analysis was given in a civil case; but ‘applies also to family proceedings’ (at [24]). Next is the evidence relevant; and if so should it be admitted? Evidence of what happened before or since may make its recurrence more or less likely (DPP v Kilbourne [1973] AC 729;O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534)).

In R v Mitchell [2016] UKSC 55, [2017] AC 571 the Supreme Court considered ‘propensity’ in a murder case; and this stressed ([39], [43] and [44], cited by Peter Jackson LJ at [25] that if propensity is to be relied upon – as of F’s alleged coercive behaviour – then it must have been proved by the party who asserts it.

Conclusion

In R v P M’s appeal was allowed. F’s application was put back for urgent case management by a Family Division judge. As to the similar fact evidence and propensity, the Court of Appeal was quite clear: the evidence must be admitted (said Peter Jackson LJ at [33])in the interests of justice…. Whether propensity is established and whether it will be of probative value will be matters for the trial judge.’ And in support of this proposition in family proceedings, as can be seen, the Court of Appeal cites from a spectrum of civil and criminal jurisprudence.

David Burrows

3 September 2020