Unlawful law-making

As FC-Day-42 becomes FC-Day-41, the silence remains eerie. One commentator, solicitor Marilyn Stowe (http://www.marilynstowe.co.uk/2014/02/20/mixed-messages-from-solicitors-journal/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+MarilynStoweFamilyLawAndDivorceBlog+%28Marilyn+Stowe+Family+Law+and+Divorce+Blog%29) has lamented:

I imagine that few of us are opposed to modernisation. We accept that within the current system, there is plenty of room for improvement. But with so many grey areas and no clear direction, the present effect is one of voices chattering away in the darkness. How long must we wait before somebody turns the light on? More worrying still: when everything is illuminated, what will we find there?

Those of us who follow Sir James Munby’s increasingly ominous pronouncements may wish to dwell in the darkness a while longer. After all, if recent developments such as the demolition of legal aid and the rise of self-representation have shown us anything, it is that family lawyers are increasingly undervalued by those with the power to bring about change. 

‘Ominous pronouncements’, indeed. Practice guidance with only the authority of his office; but no statutory clothing (see eg Constitutional Reform Act 2005 which explains how practice directions etc are made); case note guidance with no right of those it is aimed at to respond (UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam),  Mostyn J http://www.bailii.org/ew/cases/EWHC/Fam/2013/1735.html (solicitors and Imerman documents); Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) Pauffley J http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html) (magistrates’ facts and their reasons): this is an unlawful way to make law. Judges, in this context are administrators (ie they are not adjudicating on any issue) and should proceed with consultation etc accordingly. This was explained by the Court of Appeal in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171. 


Elsewhere, the High Court (per Laws LJ in the Divisional Court) questions whether an aspect of the Terrorism Act 2000 infringes the rights of free expression under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 10 (Miranda v Secretary of State for the Home Department & Ors [2014] EWHC 255 (Admin)

Laws LJ reminds readers that freedom of expression (per Art 10) has two distinct aspects (in the context of press freedom):

(1)   A right of self-expression which belongs to everyone so long as we do ‘advocate no crime or nor violate the rights of others’ (para [45]); and

(2)   A sub-class of this right: ‘journalistic expression’ (para [46]).

So, he goes on, the journalists’ right depends upon and serves the right of his readers (para [46]). In the modern family court there is a rush to publish all, with minor redactions. I do not wish to appear Luddite about this. However, I do beg Sir James Munby P to bear in mind also very carefully the welfare of children involved, and of their families and others involved; and to recall always the priorities – and limitations on the press – to which Laws LJ refers. The ‘open’ court aspect is only one part of Art 6(1) (right to a fair trial); and Art 8 (right to family life), though subservient to the other two, is always there.


FC-Day-43President’s View No 9 has emerged; and it tells us only that ‘private law’ – by which he means children law proceedings, other than care proceedings – is next under the microscope for reform. This still leaves all other areas of family law (outside children proceedings) to be considered; what most of us would call ‘private law’. The purpose of the unified system of Family Procedure Rules 2010 was that areas of law should not be ghettoised in this way.

This President is developing authoritarian tendencies, which are genuinely disturbing. In this he is an administrator; yet he ignores the most basic of administrator’s responsibilities. I understand, he is impervious to the regressive state of affairs that this creates; and the dangers for a lopsided version of the law developing. The following is the litany of arbitrary law ‘reform’ thus far: his own transparency guidance of 16 January 2014; the ‘guidance’ – misguidance would be more appropriate a term – issued by Mostyn J (with the President’s approval) in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam); and the negative rubbishing of magistrates by Pauffley J in Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam).

As Pauffley J said in Re NL it must stop; but now it is the President who must please stop. These emissions are illegal: a future note will explain why (or, in the meantime, see Constitutional Reform Act 2005 and Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171).


Guidance – 1997 vintage – to justices…

Magistrate’s guidance to deal with reasons in children cases is dated November 2007 and based on guidance issued by Cazalet J in 1997 (reference below); and a Good Practice note which deals with detail ‘to be contained within facts and reasons’. Since 1997 and 2007 there have been a new set of rules, relevant case law (including other than in the children jurisdiction (Pauffley J refers to one such case Crinion)), a variety of new practice directions and PLOs, a new family law statute (Crime and Courts Act 2013 Sch 10: defines the family court) and Children and Families Bill nearly through Parliament. Pauffley J makes no obvious reference to the 1997/2007 guidance, nor to any other of the variety of factors which affect the common law as it impinges on the practices of the justices she was so cross with.

Sir James Munby P concluded his View from the President’s chambers: the beginning of the future (undated), Ministry of Justice (‘View 10’ in a series of 9, thus far) in the following minatory terms: ‘In Re NL (A child) (Appeal: Interim Care Order) [2014] EWHC 270 (Fam), Pauffley J had to deal with circumstances which I hope will never recur.’ In the last article I explained what had happened: for an interim care order, based on slender local authority information (it barely answered the name of ‘evidence’), the justices issued a more or less pro forma set of ‘facts and reasons’. It should ‘never recur’: but what should happen instead? Or rather, we accept that what happened was wrong; but what does the President expect the justices to do about it?

The problem starts with the procedural rules and their essential unhelpfulness; and with the fact that such guidance as there is is elderly.  This note looks first at the law, especially procedural law. In summary the main sources are:

  • The lead act on dealing with children is Children Act 1989 (shortly to be amended by Children and Families Bill).
  • Procedure is in Family Procedure Rules 2010 Part 12, copious direction, and, in particular Practice Direction 12A; public law proceedings guide to case management: April 10 (none of which is prescribed by any clear primary or delegated legislation)
  • Magistrates’ Courts Act 1980 s 74 records that rules may provide for magistrates to ‘record’ reasons for a decision (interesting to note old-fashioned use of the term ‘record’ – most readers might expect this to mean in some electronic spoken version).
  • FPR 2010 r 27.2(3) requires magistrates to give written reasons (though a skim through Practice direction 12A finds no specific reference to how they are to do this, nor particularly in relation to interim care orders); and the ‘justice’s clerk’ must record the reasons. As will be seen, other courts and tribunals get assistance from the House of Lords and Privy Council on what they must do.
  • The Justice’s Clerk’s Society and the Magistrates’ Association has issued Guidance dated November 2007 (‘the Joint Guidance’) http://www.familieslink.co.uk/download/sept07/guidance_on_family_justices’_reasons.pdf. This is by reference to Cazalet J’s 1997 guidance in 1997.

Children Act 1989: interim care orders; court determination

Re NL concerned an interim care order. Children Act 1989 s 38(1) enables a court – the family court as is shortly to be – to make such an order, but only where, under s 38(2), there are ‘reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)’ (ie ‘significant harm’ etc). In Re NL the President, through Pauffley J at paras [57] – [71], told magistrates what not to do when it comes to decision-making; but said nothing of what they are expected to do. The Joint Guidance does this to an extent; though it needs updating: modern case law especially as to the common law on decision-making and more emphasis on human rights jurisprudence could be included (without making it over-technical).

Agreed facts: parens patraie jurisdiction

A problem with children proceedings is that the court has a parens patriae (country’s – ie people’s – parent: derived from old warship concepts) (‘PP’) element. This does not arise in other civil proceedings (in such proceedings, the parties can settle their own cases by agreement). Parties to children proceedings must generally seek court approval for their agreement; and, to differing degrees, the court must check what parties have agreed. That said, any court disposal will be concerned only with resolving the issues (ie by definition, contested) between the parties with the PP overlay in care/interim care order proceedings. Facts not in issue can be listed as agreed (see eg Re B (Agreed Findings of Fact) [1998] 2 FLR 968 (see below)).

The Joint Guidance refers to ‘facts not in dispute’, that these should be recorded and that the parties might be directed to agree these before any hearing (page 6). It is perhaps worth emphasising:

  • that in relation also to the facts to support a full care order, the same can apply; and
  • that more contentious facts can remain untried if the facts as agreed are sufficient to found the order required.

Thus in Re B (and this is not only referred to emphasise a high point in my career) Butler-Sloss and Thorpe LJJ were willing to accept agreed facts sufficient for a care order, without all facts being proved. Disputed poisoning allegations could be left over to a criminal trial and a 10 day care hearing came out of the list. As Butler-Sloss LJ explained (at p 968):

The difficulty that arose [here] was that the solicitor representing the mother, Mr Burrows, came up with an ingenious, if he will allow me to say so, solution for the immediate 10-day trial which is due to start tomorrow, which was that the mother recognised that she was in many senses an inadequate parent to L, quite separately from the allegations, which are strenuously resisted, that she administered salt to the younger child. She has recognised that the child has a development delay, particularly in speech; that he has not been altogether well cared for; that she has exhibited elements of poor parenting in various ways; [the judge recited the list written down and agreed at court]…

She went on (at 971):

But since the local authority want a supervision order and since there is sufficient evidence upon which a supervision order can properly be made, at the end of the day the child will be protected regardless of whether this significant issue is or is not litigated today. The judge said, and I am a little concerned about it, that he felt that he was in effect being asked to rubber-stamp an agreement between the parties. I do not see it myself as that. What we have here is an acceptance by the mother, which has been reduced to writing and now typed, of her inadequacies as a parent and that acceptance and indeed recognition of her inadequacies in areas other than in administration of salt is, I would have thought, a step forward for the mother, no doubt having had the assistance of some wise advice from her legal representative (italics added).

The determination: disposal of issues

Issues for the court are of fact and of opinion (‘experts’ are witnesses of opinion: Civil Evidence Act 1972 s 3); and of law applied to those facts. To reach its determination the court proceeds (at least in principle: at an interim stage the process may be abbreviated) as follows:

(1)   It applies the law (statute law and common law), if any is applicable, to the facts as found or agreed; and to any opinion evidence;

(2)   It exercises any discretion which the law permits (ie discretion is not inherent);

(3)   It considers any human rights questions in play.

The court will now have arrived at the point of decision-making. In the case of a Children Act 1989 proceedings, the decision must be recorded (Magistrates’ Courts Act 1980 s 74). The question which the next article in this series must answer is; ‘In exactly what terms may a magistrates’ court determination’ be recorded? Is it possible to reduce this to a template which can be used as a framework for the document the President expects the justices to produce (and see p 10 of the Joint Guidance)?

Yes, by all means it can, derived from the categorisation of issues above and as set out in the Joint Guidance, and applying the common law and human rights principles (as appropriate). And – I am sorry – what I thought was to be two articles when I started, now becomes three…


President’s criticism of justices reasons and interim care order procedure

The President of the Family Division Sir James Munby, has been musing monthly on his view of family law from his office window. In his most recent ‘View’ (number 10: undated – http://lexisweb.co.uk/blog/family/wp-content/uploads/2014/02/tenthviewfeb2014.pdf) he said: ‘In Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), Pauffley J had to deal with circumstances which I hope will never recur.’

This comments was not explained in the View; but a reading of the case shows that Re NL http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html  at paras [57]-[71] was approved by Sir James. This relates to what Pauffley J (or Sir James) call ‘Compilation of the justices findings of fact and reasons’. In the judgement Pauffley J 14 paragraphs saying how naughty (that is her tone) magistrates have been; but says very little of what they could or should be doing when giving reasons in on an interim care order application. This will be considered – along with question of issue estoppel and so on – in a second article. 

Re NL: the facts

The case is mainly remarkable not only for drawing Sir James’s fire, but also for the way in which an expert’s report was commissioned and her ‘evidence’ adduced. Its underlay is, I would guess, a combination of three factors in addition to the facts and reasons question: local practice (varying form court to court) as to how interim care order applications are dealt with; the 26 week timetable (soon to be law: Children and Families Bill); and inadequacy (perhaps) of availability of opinion witnesses.

The facts of the case are, in context, sad but relatively unremarkable. NL was born on 31 October 2013 to a 32 year old mother, EL. The father took no part in the proceedings. NL is the eighth of EL’s children (seven more were by two different fathers). Hers was a difficult back-ground involving drink, drugs and separation from her older children (though contact was maintained). At a hearing on 8 November 2013, the justices had a letter from EL showing that she had support from a specialist resource service to care for NL; they heard evidence over the telephone from a chartered clinical psychologist who had been persuaded, or had been willing in this way, to provide an opinion (of sorts) supporting interim care. The justices adopted the ‘facts and reasons’ drafted by the local authority. An interim care order was made.

The judicial scapegoating of the justices and the lack of criticism of the President is remarkable: almost no comment as to the potentially and deeply unsatisfying nature (Art 6(1) compliant?) of the 26 week limit; nor of the Ministry of Justice’s (via the Legal Aid Agency) dumbing down pincer movement on the fees of experts. As chairman of Family Procedure Rules Committee and as a President who has thrown a heavy political hat (9 ‘Views’: number 9 does not seem to exist) into the tired family court ring, he is substantially responsible for procedure. His insouciance (via Pauffley J) is remarkable. 

Justices’ reasons: per Pauffley and NL

Pauffley J’s reasons for criticizing the justices’ reasons sets out the facts ([57]-[65]) and then takes the reader to European Convention 1950 Art 6(1): right to a fair trial. She talks of a largely ‘clandestine arrangement’ between local authority and court:


[67] Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.

She goes on to draw attention to the Court of Appeal’s criticism of cut and paste judgements in Crinion & Anor v IG Markets Ltd [2013] EWCA Civ 587. To say this in such a context verges on hypocrisy, surely? Judges routinely (and who is to blame them, if they agree entirely with one side?) cut and paste skeleton arguments: why re-invent the wheel? The trick is to work in a few references to counter-arguments (and why they are rejected) as Sir Stephen Sedley explained in Crinion. Had the local authority lawyers been half-way alert to Crinion they would have allowed for this.

Where have all the lawyers’ gone?

And in all this: what is the justices’ legal adviser saying? What does counsel for the local authority say is the law? Do we hear the advocates for the parent or child objecting loudly to these badly behaved justices (well yes, the mother appealled)? For the most part (EL’s advocates apart) the lawyers gang up on the magistrates to say (as teachers used to do at school: this is ‘wrong’ and it ‘must stop at once and never happen again (sic)’. Yes really: at [69] Pauffley J actually says that; and to a group of grown-ups; to people who are volunteers; and to members of the community who cannot – in all fairness – be expected to be spoken to like that (and this is part of the judgement approved by the President).

Stepping aside from author as analyst to author as personal commentator: I remind the Family Division that their 40-year-ago predecessor, Sir Morris Finer presented to the then government the Report of the Committee on One-Parent Families July 1974 Cmnd 5629. After a seven year enquiry his committee recommended that in their ‘unified family court’ lay justices and lawyers (‘judges’) should sit together in children cases. I have reminded Sir James of the Finer report. Characteristically he does not reply; not do I know if he or his officials pay it any regard.

To hear the justices; and their reasons? – and how?

That the High Court judges should be so rude makes me truly ashamed. Who spoke up for the justices in Pauffley J’s court. Crucial to Art 6 (indeed to any administrative exercise which paras [57] – [71] is; and see second article) – is audi alterem partem: hear the other side. The High Court judges did not do this.

It gets worse. After all the criticism, they judges do not tell the justices what they should have done, or should now do. This is – for me at least – embarrassing. So, in the next passage I propose some suggestions: (a) what is the law; and (b) how it might be applied? I do this with all humility and caution: I am no longer (nor have been for many years) a child law specialist. I come at it as one who looks at the law – the maetwand of the law – as it inhabits justice and as it can sustain family court procedure.



Civil legal aid: LASPOA 2012 s 10 

Legal aid: it matters not that a case is ‘deserving’

Some of what follows may sound personal against Eddie Faulks. It probably is. On last Tuesday, 11 February 2014 a question arose on ‘Legal Aid’ asked by Lord Bach: ‘what assessment [had HMG] made of the extent to which LASPOA 2012 s 10, dealing with “exceptional cases”, is working as intended.’ Lord Faulks (orse Eddie F, or ‘fast’ Eddie to his friends at the bar, but now ‘the Minister of State, Ministry of Justice’) replied: ‘the Government consider that the exceptional funding scheme is working effectively’. Well, he would say that bit: he probably read it off a piece of paper written out by an official.

First struggling legal aid lawyers: he does not declare an interest. The likelihood is that he owes his professional position (a one-time QC) to earlier years as a barrister doing much of his work on legal aid (there’s a FOI question, for someone!); which makes the arrogance in what follows all the more damning.

Lord Bach (Lab) thanked Faulks for his answer ‘as far as it goes’; and then went on:

… Parliament and the public were told time after time to believe that s 10 would act as a safety net for those cases where it was manifestly unfair that the citizen should not have access to civil legal aid. However, the application forms are impossible for a non-lawyer to complete and a lawyer will not get paid a penny if the claim for legal aid is unsuccessful. Even worse is the fact that only in 3% of claims has legal aid ever been granted. 

‘Exceptional case determinations’

Before hearing Faulks’s reply it is worth seeing what LASPOA 2012 s 10 actually says. In doing so, one must bear in mind that this is the tip of the statutory and delegated legislative (ie loads of regulations) iceberg; and that Faulks expects ordinary people to understand that lot, and a tranche of European Convention 1950 jurisprudence as well.

Under the heading ‘Exceptional circumstances’ the meat of s 10 is as follows:

 (2) This subsection is satisfied where the Director—

(a) has made an exceptional case determination in relation to the individual and the services, and

(b) has determined that the individual qualifies for the services in accordance with this Part,…

(3) For the purposes of subsection (2), an exceptional case determination is a determination—

(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach. 

Minister’s reply

Lord Faulks’s reply requires to be broken down. The first part is as follows:

The provisions contained in Section 10 of the LASPO Act make it perfectly clear that it is there for exceptional cases where, in the absence of legal aid, there would be a violation of Article 6 of the European Convention on Human Rights or possibly of the provisions of the European Union. It is not about whether a case may be deserving; it has to fall specifically within the confines of the section.

Leaving aside the nastiness of the second sentence (reminiscent of a distinction between the ‘right’s’ of the working classes, as against the rights of the middle and upper classes, say, in Victorian times), let us analyse s 10 and what Faulks says. Section 10(3) – mostly s 10(3)(a)(i) for practical purposes – defines what is meant by ‘exceptional cases’. Thus it is not that a case is exceptional in any objective sense. No, it is ‘exceptional’ under LASPOA 2012 for a quite different reason: because it comes within s 10(3). Any epithet could have been chosen: ‘special’, specific, ‘European Convention’, ‘section 10’. It happens the Government choose ‘exceptional’. This point seems to go over Faulks’s head; or has he not troubled to try to understand it? 

The application form

Faulks went on:

As to the application form, it was consulted on regularly [with whom, one wonders?] and in detail before it became part of the process. I am surprised that solicitors are having difficulty in filling it in. It is possible for someone to fill in the form on their own and they can then have a preliminary view given to them by the Legal Aid Agency as to the prospects of success. It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section.

He descends to the depths here? I doubt he has ever worked in a solicitor’s office. He has no idea of the pressure on junior staff, whose firm will not be paid for their efforts, to fill in these forms. Still less can he imagine being a ‘someone [trying] to fill in the form on their own’ (namely a CIV ECF1). They could all go out and eat cake instead, perhaps, Lord Antoinette Faulks?

Page 3 of ECF1 requires ‘Generic Information’. This starts: ‘1 How important are the issues at stake for the client?’ OK that’s fine: I’m a woman who was raped following a forced marriage; and seven years later, backed by his family’s money, the father of the children is seeking contact. Are there enough people like me to make me not exceptional, perhaps? On page 4 I must explain how complex are the procedures, the area of law or the evidence in question; and I must explain the ‘legal complexity’: that’s a sinch, obviously. On pp 7 and 8 I must set out what ECHR rights apply: again, I like nothing better on a Saturday morning than to read human rights text books and to dip into BAILII Euro-jurisprudence on-line. I’m an ordinary person from Clapham, and I can deal with all that.

In giving that reply Faulks was arrogant, of that there can be no question. I fear his arrogance is not ‘exceptional’. And of the rest, either he is secretly too stupid to see the difficulties in the form; or the implication that he has read it – ‘I am surprised at solicitors’ – is based on an untruth (ie that he literally does not know what he is talking about: he has not read the form). It is secrets or lies Edward (as we called him at school: yes, an expensive public school, I confess): it must be one or the other.

The day of St Valentine 2014 – FC-Day-47


FC-Day-47 (aka St Valentine’s Day) dawns wet. An eerie stillness hangs in the rain-drenched air. No-man’s land is still: mist hides the tops of the trees on the hill – not far from where we stand, cold hands chaffed by the damp winter air. We know that somewhere there – interred in the leaf-mould, buried by the bole of a tree, perhaps – plans for the new court are hidden. We need to find the plans for those we want to help. It will take them and us to the next stage of our journey to the family court’s brave new world.

We know that, hidden away so carefully – and we shudder excitedly in the cold as we talk of them amongst ourselves – are four set of draft amendments rules; countless precious practice directions (we can only guess at the depth of their importance and the pricelessness of their prose), a guidance or two (perhaps only glimmers as yet in the mind of one who will issue them). It is a wealth of legal learning which – as representatives of law and the guardians of a tradition which affects litigants in person and children and represented party alike – we treasure.

Perhaps we must await its revelation; but ‘absent’ (as the great persons say) a word from the woods, it is hard to know why a few more secrets may not be revealed.

A whistle blows. We will retire and await another day…


Family proceedings: ‘the beginning of the future’ 

A ‘View from the President’s chambers’ [10] – ‘The process of reform: the beginning of the future’ – is out. Various features of where we’ve got to are explained by Sir James Munby P. For the present it must be recorded that Sir James and Ministry of Justice officials are not of one mind; at least, not on the papers, as we say in the trade.

Readers may recall controversy over precedent orders being prepared by a shadowy – well, ‘shadowy to me’ – group around Mostyn J. Just precedents? Or were they ‘mandatory orders’ as Resolution are telling their members. Are they the oxymoronic ‘mandatory draft’ orders. Or are they in reality, as the Ministry of Justice seems sensibly to be suggesting, ‘standard orders’?

The possibilities are more or less clear. When asked to state what his powers were to do all this, the President was – and remains to this day – silent. Thank goodness for people who understand how these things are done. And when might anything start? Ministry of Justice says around September or October 2014, with a rule change or a practice direction: per email dated 5 February 2014. 

A week later, says Sir James:

The family orders project continues under the leadership of Mostyn J. I will shortly be issuing a second batch of draft orders for discussion and comment. May I take this opportunity of making clear that this important work has not been put on hold indefinitely. There has merely been a necessary slowing of the tempo, whilst even more pressing matters take priority. Implementation may be staged and in any event will not take place until after April 2014.

Not until after April 2014 (and no mention of a SI); or autumn with a SI: where does anyone’s money lie? If bets were to be taken my money would be on MoJ. Rule of law (Ministry of Justice) against arbitrary administrative diktat (ie Munby P and Mostyn J) would prevail. That is what modern democratic administration is – or should be – about.

The present news as to amendment of Family Procedure Rules 2010 is summarised in an earlier blog.