ADMINISTRATIVE LAW AND THE FAMILY COURTS

Public bodies and applications in the family court

The case of Re X (A Child) [2014] EWHC 2522 (Admin) (considered also in http://suesspiciousminds.com/2014/07/23/serious-case-review-versus-judicial-review-a-cough-review/ under the heading: Serious case review against judicial review: a review) prompts the question: why cannot the family court hear all issues with administrative law aspects or other the intervention of public bodies. It hears such application daily in care proceedings where a public authority (as eg defined by Human Rights Act 1998 s 6(2)) is invariably the applicant. Public bodies are parties – whether as applicant or intervener – in a variety of family proceedings, such as:

• In Revenue and Customs v Charman [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119 HMRC unsuccessfully sought a husband’s family proceedings documents in connection with a tax tribunal appeal
• In A Local Authority v Mother, Father and X and Y [2014] EWHC 278 (Fam), Baker J ordered that documents sought to be disclosed to the police, should be disclosed
• By an ‘originating summons’ procedure in CM v Exor of the Estate of EJ (deceased) and HM Coroner for the Southern District of London [2013] EWHC 1680 (Fam) the High Court ordered a specimen to be produced to the applicant for testing for communicable diseases
• The CPS in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550 succeeded in preventing disclosure of information in financial remedy proceedings to Mrs Gohil
• In Giltinane v Child Support Agency [2006] EWHC 423 (Fam), [2006] 2 FLR 857, Munby J deliberately allowed an appeal out of time in judicial review where statute prevented such a course.

All of these cases started as family proceedings under Family Procedure Rules 2010 (‘FPR 1991’), where remedies are provided either interim to existing proceedings (FPR 2010 Part 18); or on a free-standing – ‘originating summons’ – basis under FPR 2010 Part 19.

The father (F) in Re X (above) was not to prove so fortunate in his application; but before considering his position it is perhaps worth bearing in mind the maxim: Ubi remedium ibi lex. That is to say, it is an object of English law that, where there is a legal problem to be resolved or a civil right to be defined then the law will find a means of doing so. The family court is not intended to be any exception to this; and Matrimonial and Family Proceedings Act 1984 s 31E(1) (powers of the new family court) provides that family ‘court may make any order (a) which could be made by the High Court if the proceedings were in the High Court, or (b) which could be made by the county court if the proceedings were in the county court’.

Re X: the case – Working Together

In Re X a boy (aged 13 in 2014) had been subject to care proceedings and had been stabbed by his mother. A care order was made on 17 January 2012. The Local Safeguarding Children Board (LSCB) undertook a serious case review (SCR), which was completed in 2011; and, as required, the LSCB produced an overview report and executive summary. The guidance to publication of these reports had been in Ch 8 of Working Together to Safeguard Children (March 2010: now superseded by a March 2013 version; though this seems not to have been noted by the judge). The 2010 version of Working Together required only that the executive summary of the report be published unless (as changed by a ‘ministerial letter dated 10 June 2010’) for ‘compelling reasons relating to the welfare of any children directly concerned in the case’ the LSCB thought this should not be permitted.

In Re X (paras 6 and 7) the LSCB decided that they would only allow the ‘overview report’ and ‘executive summary’ to be seen by the court; and X’s father (F) was only allowed to see the report in court or at the local authority’s offices. He applied to the court to have the report released to him

LSCBs and the local authority

The LSCB is set up by ‘the local authority’ (Children Act 2004 (‘CA 2004’) s 13(1)), which is the same body as takes care proceedings (see eg Children Act 1989 s 31(1): care order application). However, Sir James held that the LSCB was a public body which is ‘juridically distinct from and wholly independent of the local authority’. The application was in respect of LSCB and not part of the care proceedings. Secondly, it was a ‘a free-standing application’ not in the inherent jurisdiction of the High Court eg for a reporting restriction order to restrain publication of a document (see eg Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500: a case also decided by Munby LJ but on the subject of restrictions on reporting of SCRs), and must therefore be made in the High Court by the procedure under CPR 1998 Part 54. The application, said the judge was ‘misconceived’.

That said – as can be seen from its title – the judge was willing to transfer the case to the Administrative Court (he treated the decision of the LSCB independent chair to disclose the summary to F of 19 September 2012 on only a limited basis as the decision under judicial review). He held the application to be out of time; but, time grounds apart, he held that F had not identified any ‘conventional grounds’ for review (para 20; see below).

European Convention 1950 rights and ‘anxious scrutiny’

In Re B (A Child) [2014] EWCA Civ 565 the Court of Appeal considered whether an appeal should be allowed where a judge appeared not fully to have considered the ‘welfare’ factors which a court must consider once it was decided that the CA 1989 s 31(2) threshold had been achieved. Of the duty on the decision-maker – the court in this case – Black LJ said:

[41] Re B (a child) [2013] UKSC 33, Re G (a child) [2013] EWCA Civ 965 and other decisions made during 2013, which was a particularly active year for family law, have made clear that the decision whether to make a care order (as also the decision whether to grant a placement order) involves not only an exercise of discretion but also a rigorous consideration of whether the order is necessary or, putting it another way, whether it would be incompatible with Art 8 ECHR (the second element sometimes being referred to as a “proportionality evaluation” or “proportionality test”).

This comments echoes a variety of case law, especially since the speech of Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 (at para 17) – from the Supreme Court downwards (and see Munby LJ himself in Re X and Y (above)) – which stresses that where Convention rights apply, the judge or public authority decision-maker has a discretion as to how such rights are applied. This involves him/her in an ‘anxious scrutiny’ of what are the Convention rights, of how they apply to the individual case and where interference is to be permitted (in the X case, F’s Art 10 and perhaps Art 6(1) rights). Finally the decision-maker, and the judge on judicial review, must assess whether any interference with Convention rights is proportionate to the issues involved in the particular case.

Sir James Munby P rejected F’s deemed judicial review application on time grounds; and also on grounds that he had not brought himself within ‘elementary grounds’.

[20] … It is elementary that judicial review lies only on certain well recognised grounds – for example, procedural unfairness, error of law, misapplication of the statutory scheme or irrationality.

Of the ‘anxious scrutiny’ of European Convention 1950 proportionality required of the Board and by him on judicial review, Sir James said only:

[23] … Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

He did not give F the opportunity to go away and plead his permission application more fully. He rejected there being errors of law and attempted no ‘anxious scrutiny’ beyond the above.

Errors of law

Representation in X was that the local authority solicitor instructed a QC for LSCB and a junior for the local authority respectively (it is not known if the local authority paid for both), and CAFCASS instructed a junior as advocate to the court. However, there is no evidence that Sir James’s attention was drawn to the following errors of law:

(1) Disclosure in care proceedings

The care order was made on 17 January 2012. The SCR was completed in ‘2011’ and the ‘executive summary’ was completed six months earlier. Insofar as this was available to the local authority it must have been subject to disclosure (ie though not necessarily production) in the care proceedings. Why was not production sought then (when, presumably, F had legal representation)? Either the local authority should have applied for, or the judge ordered, public interest immunity or its confidential status (if such it was) should have been claimed. If only limited production was to be available then principles such as those applicable on partial disclosure in Re M (A Minor)(Disclosure of Material) [1990] 2 FLR 36, HL should have been considered.

(2) ‘Local authority’

The judge found that the LSCB and the local authority are separate bodies for party status and judicial review purposes. This may be entirely correct; but it does require some examination in the light of ‘the local authority’ being both responsible for setting up LSCBs (CA 2004 s 13(1): ‘Each local authority… must establish a [LSCB] for their area’) and being also the party to the care proceedings – issued under CA 1989 s 32(1) – to which F was a party. The child who was the subject of the proceedings was also the subject of the report. Were two completely separate sets of proceedings appropriate for one child and the same or similar parties?

(3) ‘Functions’ of the LSCB

Sir James Munby P explained the back-ground to publication of SCRs as that regulations made under CA 2004 has

[3] … very little to say…: both the Children Act 2004 and the relevant regulations, The Local Safeguarding Children Boards Regulations 2006, SI 2006/90, are silent on the point. It is dealt with in the statutory guidance issued pursuant to section 16(2) of the 2004 Act.

Of that ‘statutory guidance’ he referred to Working Together to Safeguard Children (March 2010), paras 8.44 and 8.50 and to further June 2010 ministerial guidance; but his attention does not seem to have been drawn to the fact that by the time F made his application (May 2014) a March 2013 version of Working Together had been published (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281368/Working_together_to_safeguard_children.pdf); and this specifically refers to publicity for reports, albeit in an oblique way (Chapter 4):

[15] From 2013 there will be a national panel of independent experts to advise LSCBs about the initiation and publication of SCRs. The role of the panel will be to support LSCBs in ensuring that appropriate action is taken to learn from serious incidents in all cases where the statutory SCR criteria are met and to ensure that those lessons are shared through publication of final SCR reports….

As the President says, CA 2004 s 16(2) requires:

… the local authority and each of their Board partners must, in exercising their functions relating to a [LSCB to] have regard to any guidance given to them for the purpose by the Secretary of State.

H treats Working Together as being guidance under s 16(2). The above para 15 is not conclusive on publication, but its meaning and effect on F’s case should surely have been considered by the High Court?

(4) Human rights issues: ‘anxious scrutiny’

As already explained, European Convention 1950 issues were not explicitly considered either by the LSCB or by the court; and this in itself might be thought an error of law justifying at least the grant of leave and an opportunity to F more fully to plead his application for judicial review.

Legal implications of a decision in the family court

Instead of as an application for judicial review, this case could have been treated as an application under FPR 2010 Part 19 (as a free-standing basis) or as an application interim to the care proceedings (FPR 2010 Part 18); but in any event the full legal implications of what had happened under the modern law could perhaps have been permitted to the applicant father. However, there seems to be no logical reason why such applications – against the same local authority who made the care application; but certainly involving the same subject child – should not be made in the family proceedings in which the original children issue arose.

All this is not to say that the President should necessarily have allowed a review of the LSCB decision-making – the issue which was before him. It does suggest that there may have been more errors of law – disclosure, a definition of ‘local authority’, and the functions of, and guidance to, LSCBs – antecedent to the LSCB decision which he was being asked judicially to review. Both the LSCB and the judge himself should perhaps have given fuller thought to the European Convention 1950 rights engaged by the father’s request and later court application before their decision was made.

David Burrows
28 July 2014

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PROTECTED WITNESSES

Children proceedings: evidence from protected persons

Children and those who lack capacity have special protected party status. Should certain witnesses – not necessarily for the same reasons – enjoy the same status in civil proceedings? The subject has been considered recently in the Court of Appeal (though not in any obviously coherent way) in the context of children law family proceedings. The subject of whether such evidence might in certain instances be subject to a form of public interest immunity remains at large (D v National Society for the Prevention of Cruelty to Children [1978] AC 171).

Re J (A Child) [2014] EWCA Civ 875 (27 June 2014) was a further rerun of the Supreme Court case (via Pauffley J in the Family Division of Re A (A Child) [2012] UKSC 60 (a vulnerable witness (X) in child contact proceedings where her evidence could not be relied on as the basis of a finding of fact against the father applicant: paras 104 and 110 after various efforts had been made to deal with it in a way which was fair to the father. Public interest immunity for X’s child protection informer evidence was touched upon but discounted by the Court.) In Re B (Child Evidence) [2014] EWCA Civ 1015 (22 July 2014) the Court of Appeal considered whether a court in private children proceedings should receive evidence from another child (not a party to proceedings).

Justice to parties, before any welfare of the protected witness

Re B took as its starting point Re W (Children) (Rev 2) [2010] UKSC 12 which concerned whether a child, the subject of care proceedings, should be called to give evidence. Baroness Hale concluded (at para 30) that the test must be ‘whether justice can be done to all the parties without further questioning of the child’; but that it was justice to all parties – drawing a balance of Convention rights – which should be the basis for a decision. It was not a question only of giving priority to whether the child should give evidence as had been the previous law:

[22] … The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the ECtHR, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002, BAILII: [2002] ECHR 551. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.

Thus the court must balance on the one hand ‘determination of the truth’ as against ‘the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided’ (para 24).

In Re B the judge had decided, after careful consideration in accordance with Re W, that the evidence of a thirteen year-old daughter to the mother of a 5 year old son ((half) daughter of the father applicant in contact proceedings) in the first instance should be approached by being obtained by a court ‘adviser’. The order

[5] … envisaged that she may actually proceed to put questions to G. The parties were directed to agree and provide to the Adviser “a list of proposed questions ….that they would seek to be put to G”. The officer was then to meet G in a neutral venue and it was:
…left to the Adviser’s professional judgment as how to conduct the interviews and whether or not the questions should or should not be put to G and if so the format and formulation of the questions or any additional questions the Adviser feels appropriate to the issues in Re W but the Court’s provisional expectation would be that none of the questions proposed by the parties should be put on the first occasion or until the Adviser feels appropriate.

The court said that it wanted the ‘adviser’s’ report to cover:

(1) Would it be appropriate ‘or within G’s best interests’ to answer questions prepared by the parties;
(2) Whether G was willing to answer questions or attend a fact finding hearing to give oral evidence; and
(3) ‘If the “adviser” [so] decided’ to put the questions to G, and report her answers.

The father took no part in this process and, though it is not immediately clear from the report, it is presumably his appeal to the Court of Appeal; and at what can only be described as an interim interim stage. (The judge below gave permission to appeal to the Court of Appeal.)

Evidence from children/vulnerable witnesses

The position after the last of these decisions is as follows:

(1) Child witnesses as parties can be required to give evidence: this will depend on the justice of the case balanced against the welfare of the child (Re W (Children) (Rev 2) [2010] UKSC 12);
(2) Similar principles apply to child witnesses in private law proceedings even though they are not directly party to the proceedings (Re B (Child Evidence) [2014] EWCA Civ 1015)
(3) A vulnerable witness in children proceedings remains open to cross-examination (by some means: Re A (A Child) [2012] UKSC 60); or is she subject to informer immunity (D v NSPCC).

A coherent strand through these various forms of evidence-giving is still awaited. The law is dangerously unclear on what, if any, immunity should be available for those who provide evidence which protects children. The extent to which witnesses in any circumstances should be protected is unclear; and the means whereby evidence is collected and adduced in court – eg as was done in Re B – remains uneven. (Re B decides nothing in that sense: it was an appeal on an interim decision, interim to children proceedings.)

It is difficult to believe that a Children and Families Act 2014 was passed less than 6 months ago, with a variety of provisions for evidence and case management in children proceedings – yet the means of securing justice in circumstances such as described here remains so much at large.

David Burrows
23 July 2014

What counts is the judgement

Re A (A Child) [2014] EWCA Civ 871 concerned long fought proceedings between parents where, at an interim stage in proceedings, the father had asked HHJ Horowitz to alter what he had said in a 2011 judgement which he had not appealled against, and where his request for an alteration under the ‘slip rule’ had been made over two years after the judgement. The judge refused to alter his judgement; and Patten LJ (with whom Black and Underhill LJJ agreed) gave F permission to appeal but refused to allow F’s appeal.

He analysed the question as akin to the rule in Lake v Lake [1955] P 366 (considered recently in the Court of Appeal in Re M (Children) [2013] EWCA Civ 1170), namely that where a judge’s findings are not part of his reasons for his/her decision and would not therefore form a basis for appeal against a decision, then they would not be part of an formal application to amend under the slip-rule (as more fully explained in Cie Noga D’Importation Et D’Exportation SA v Australia & New Zealand Banking Group Ltd (No 3) [2002] EWCA Civ 1142 per Waller LJ [27] and [28]). Of the slip-rule application Patten LJ said:

[23] It seems to me that if a judge’s findings of fact are of the kind which are not to be regarded as forming part of his judgment so as to be amenable to appeal in themselves then this Court has no jurisdiction to entertain an appeal from a judge’s refusal to amend such findings in accordance with the criticisms of the affected party. Findings of that kind which cannot be said to form part of the judgment within the meaning of CPR 40.12 cannot be amended at any time under the slip rule and a judge’s refusal to accede to an application under CPR 40.12 is not in such circumstances open to challenge.

Black LJ then went on to explain further the meaning of ‘judgement’ and ‘order’ in the context of the rules as follows:

[38] … I add these few words only because the argument as originally presented to us proceeded, I think, upon the basis of what is perhaps an understandable confusion between two uses of the word “judgment” in an area of law and procedure which it is not easy for non-lawyers to understand. I offer the following very short explanation in what I hope will be found to be non-technical language but I stress that it is not intended to alter established legal principles.
[39] To many people, the word “judgment” signifies the oral or written judgment given at the end of proceedings in which the judge explains in a narrative form what he has decided and why. What I am now saying is a judgment in this sense. In contrast, the word is used in a different sense in, for example, CPR 40.12 and CPR 52.10(2)(a) which refer to “a judgment or order” meaning, to use lay language, the end product of the proceedings. The end product of this appeal is that the appeal is dismissed and that is what will be encapsulated in a formal order in due course. The end product of Judge Horowitz’s 2011 hearing was the financial orders that he then made.
[40] The correction that the father wished Judge Horowitz to make to his judgment was not “an accidental slip or omission in a judgment or order” within the slip rule contained in CPR 40.12. It was not a correction of the judge’s order or of the “judgment” in the sense in which that word is used in CPR 40.12. The father was seeking a correction (in his eyes) of the contents of Judge Horowitz’s judgment in the other sense.
[41] The slip rule not being available, and the judge having concluded his function in relation to the February 2011 decision, as Patten LJ says in §22 of his judgment, the only possible route of challenge to what the judge said was by way of an appeal against the “order or judgment made or given” by him (CPR 52.10(a)). Here again “judgment” has a restricted meaning as Patten LJ has explained and I am doubtful that it includes the aspects of Judge Horowitz’s judgment that the father sought to challenge….

In fact the references to which Black LJ refers are as follows:

Civil Procedure Rules 1998 r 40.12(1) (FPR 2010 r 29.16(1), to which reference should also have been made (since below these were family proceedings), is exactly the same) reads as follows:

Correction of errors in judgments and orders
(1) The court may at any time correct an accidental slip or omission in a judgment or order.

CPR 1998 r 52.10(2)(a) (as does FPR 2010 r 30.11(2)(a)) enables the appellate court to ‘affirm, set aside or vary any order or judgement made’ by a lower court.

This assessment unfortunately overlooks three further aspects of the question:

(1) An appeal is against a ‘decision’ of the lower court (see CPR 1998 r 52.2(1) and 52.4(2); FPR 2010 rr 30.2(1) and 30.4(2));
(2) A judge can change his/her mind up till such time as an order is actually sealed (Re L and B (Children) [2013] UKSC 8: it was all right for a judge to change her mind where an order had not been sealed); and
(3) What is the meaning of MFPA 1984 s 31F(6) in the family court:

(6)The family court has power to vary, suspend, rescind or revive any order made by it, including—
(a)power to rescind an order and re-list the application on which it was made,
(b)power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c)power to vary an order with effect from when it was originally made.

It is beyond the scope of this note to try to answer (3).

If (2) happens it plainly creates its own special difficulties especially with the time for appeal, if from the court’s decision, has expired. What it suggests is that the judgement and the order for most practical purposes are two separate things.

By contrast, the decision, for most purposes – save where an order is not sealed – must surely be the date on which judgement is given? From this date time to appeal runs. It is against the judgement which a party appeals (the Lake v Lake point is that there is no point in appealing against an aspect of the judgement where the overall outcome of the case was success).

It is therefore the judgement that counts. This is the decision which gives rise to an appeal, and on which the appeal notice will be based. The order is the product of this. And if a judge changes his/her mind before the order is drawn, you would expect time to start to run again.

David Burrows
10 July 2014