WHY FAMILY LAW GETS PRIVACY WRONG – response to ‘transparency’ consultation

RESPONSE TO CONSULTATION: ‘Family Transparency: the next steps’

This is not a blog, but merely a means of publicising my response to the ‘transparency’ consultation. I ssek to show that for a long time family lawyers have misunderstood the common law, when it comes to privacy and open court justice. Court rules may be ultra vires. The short point is that privacy in any case must be justified; though in certain categories of case (eg children law) justification will be relatively straightforward.

Consultation paper from Civil and Tribunals Judiciary

A REPLY BY DAVID BURROWS

The CTJ consultation paper

  • The paper starts by setting out the views of the CTJ, expressed by Sir James, as follows:

A key element of the family justice reforms is the transparency agenda – finding ways of opening up the workings of the Family Court to public scrutiny so as to increase understanding of what we do and how we do it, whilst at the same time preserving confidentiality and respecting the private and family lives of those whom the system serves.

The underlying principles are two-fold. First, there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. Secondly, the public has a legitimate interest in being able to read what is being done by the judges in its name.

  • It goes on to point out that Sir James had ‘announced’ that he would be issuing a consultation paper. This, says the CTJ document, is that paper. It invites comment on four areas of family proceedings work:
  • Comment or Sir James’s Practice Guidance of 16 January 2014
  • Secondly the CTJ seek views on the listing of cases.
  • Thirdly the CTJ seek views on further ‘guidance’ which, it is said, Sir James ‘proposes to issue (sic)’ on disclosure of documents to the media.
  • Finally the paper seeks ‘preliminary, pre-consultation views’ on the hearing in public of certain types of family case.
  • This reply will concentrate on the third and fourth invitations. It will touch on the first only to the extent of urging those who run the family courts system first to respect ordinary rules of precedent. That should be the extent of Sir James’s concerns with law-reporting.

Summary of reply

  • This reply will start by seeking to define the common law bases for open justice – civil or criminal; and it must be done, and seen to be done (the Sussex Justices principle). This reply will assume that family law is but part of the civil justice system; not, as Sir James has often reminded us, part of some lawless Alsatia separate from the rest of civil justice.[1]
  • The open justice principle applies to all family proceedings. There are statutory exceptions to this, which will prevent or inhibit those who may attend a family hearing and the extent to which that hearting can be reported (Sir James clearly explained these exceptions in Re J (A Child) [2013] EWHC 2694 (Fam)). FPR 2010 r 27.10 and much of r 27.11 (which declares that proceedings covered by FPR 2010 are ‘private’ and purport to sanction certain media attendance at court) are probably unlawful at common law and made ultra vires the rule-makers.
  • The same applies to publicity for documents in family proceedings, save to the extent that the common law (summarised in CPR 1998 r 31.22) inhibits their ‘use’; or to the extent that they are derived from a hearing which in law or by judicial direction is held in private.
  • I shall therefore start by defining what I understand to be the common law on open justice. I shall explain how the common law and statute have restricted openness in respect of court hearings and of documents which are disclosed and produced at those hearings (including witness statements and expert’s reports). I shall conclude this part of my reply by asserting that family law must come out of its developing Alsatianisation. Its judges must apply the common law.
  • If this common law approach to family proceedings is recognised, then the job of family lawyers, judges and of would-be reporters of family proceedings would be relatively much easier.
  • I shall suggest that, so far as the consultation paper is based on assumptions on openness which are not in accordance with common law and statute it is redundant. The ‘open justice principle’ needs to be applied clearly to family proceedings. The vires of FPR 2010 rr 2710 and 27.11 need to be properly reviewed through a common law prism; and the common law and statutory exceptions to open justice must be clearly set out for family lawyers and the press fully to understand and apply.
  • This paper therefore proceeds as follows:
  • Open justice
  • Open justice: common law and Civil Procedure Rules 1998
  • Law-making: practice directions, practice guidance and precedents
  • Documents and open justice
  • An good starting point for family law reformers would be to consolidate into one statutory provision the exceptions to common law rules in relation to children proceedings (eg in AJA 1960 s 12and CA 1989 s 97). In one clear provision the law in this area would be so much easier than now, for the many lay people concerned, to understand.

(1)        OPEN JUSTICE

‘The open justice principle’

  • A modern statement of the ‘open justice principle’ is to be found in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 per Toulson LJ:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

‘Disclosure to the media of documents’

  • Though the Guardian case turned on the third main element upon which the consultation paper is concerned neither it, nor the later Kennedy case (which approved it) are mentioned. Yet, from at least the time of Bentham the principle that the press – now more widely terms the media – is society’s watchdog has been a cardinal principle of English law. The courts may not edit what the press, or others, choose report. This is fundamental to our society. The common law is ‘declared’ (as Lord Diplock described the process) in European Convention 1950 Art 10, as amplified by Human Rights Act 1998 s 12.
  • The extent of press freedom was explained fully by Sir James Munby P in Re J (A Child) [2013] EWHC 2694 (Fam) where he reminds the reader (especially at paras [20] to [40]) of his own, and number of other, cases on the subject. Sir James stresses the balance which may have to be struck between the respect for privacy for children and the right of parents and the press to give publicity to family cases. This applies especially in care and adoption proceedings.
  • In Re J, it will be recalled, a father had posted information about his daughter’s care case on ‘face-book’. Sir James defended the right of individuals aggrieved by the family court process to post their grievances on the internet, even when expressed in ‘vigorous, trenchant or outspoken terms’. He said: ‘there is a pressing need for more transparency, indeed for much more transparency, in the family justice system’.

Family lawyers: the wrong end of the telescope

  • The common law says ‘open justice’ is the starting point (explained by such House of Lords authority as Scott (above), Attorney General v Leveller Magazine Ltd [1979] AC 440 per eg Lord Scarman at 469 and so on down to Kennedy). FPR 2010 r 27.10 says the opposite. Which is right? (In much of what is written on this subject ‘transparency’ is the term used by family lawyers, adopted also by the CTJ paper. In fact family lawyers mean the opposite of ‘transparency’. They mean the extent to which FPR 2010, the court and the press permit the common law to be stifled – whether rightly or not, in subjective family terms – and thus the open justice principle to be subverted.)
  • The starting point for any debate on privacy in any civil court must be the common law. This is the correct end of the telescope from which to look. A substantial proportion of family lawyers (see eg some of the assumptions on which the CTJ paper is based and the response to it by Resolution (representing 6,000 family lawyers, mediators etc)) look into the telescope from the wrong end. They start from a presumption of privacy. Sir James is, mostly, an honourable exception to working from this assumption.
  • The common law starts from openness. Privacy can apply, where statute or the common law so assert; not where mere procedural rules (eg rr 27.10 and 27.11) – perhaps illegally – seek to provide. Openness is the correct end of the telescope to look from.

Fundamental rights: common law ‘the starting point’

  • If the common law is to be overridden this can only be by express statutory authority. Press freedom is guaranteed by European Convention 1950 Art 10. Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law (as summarised by eg CPR 1998 r 39.2(1)), confirms Art 6: ‘The general rule is that a hearing is to be in public’. Neither of these creates law, common law or otherwise. They merely provide a summary of what the law already says.
  • Having said all that, there is no question that Parliament is empowered to legislate in a way which is contrary to common law rights; but if it does so it must do so in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien [1999] UKHL 33; [2000] 2 AC 115 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners):

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

  • Privacy is not a matter for Parliament, since privacy is already provided for by the common law (as I explain below). The involvement of Parliament can only arise if Parliament decides to alter the common law and Human Rights Act 1998 s 12 and European Convention 1950 Art 10. There is no evidence of any Parliamentary will for promotion of privacy. Were there to have been it might have been incorporated into Children and Families Act 2014.

Statutory inhibitions on open justice

  • Open as against private justice concerns fundamental rights. Legislation at present is very limited, the most obvious being Administration of Justice Act 1960 s 12 (as explained by Sir James in Re J [2013] above). The fundamental position protected by the law is that all court hearings – civil (which includes family) as well as criminal – should heard in public. Any derogation from this must be justified: Convention rights and freedoms (the freedom to publish, being one), must be balanced against the open justice principle (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593). This is the correct end of the telescope.
  • Family lawyers have tended to think that hearings should be in private with open justice being the exception. The history to this state of affairs is traced by Thorpe LJ in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565. Family courts have therefore appropriated the term ‘transparency’.
  • This is wrong. A fundamental right, protected by the common law, can only be changed by express primary legislation (R v Secretary of State for the Home Department, exp Simms per Lord Hoffman (above); and see per Lord Hoffman again in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563, [2002] 2 WLR 1299).

Family proceedings and the ‘open justice principle’

  • FPR 2010 r 27.10 is as follows:

27.10 Hearings in private

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

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

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

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

  • FPR 2010 r 27.11 (as relevant here) then continues:

27.11 Attendance at private hearings

(1) This rule applies when proceedings are held in private, except…

(2) When this rule applies, no person shall be present during any hearing other than –

(a) an officer of the court;

(b) a party to the proceedings;

(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

(d) an officer of the service or Welsh family proceedings officer;

(e) a witness;

(f) duly accredited representatives of news gathering and reporting organisations; and

(g) any other person whom the court permits to be present.

(3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that –

(a) this is necessary –

(i) in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced.

(4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the persons listed in paragraph (5), and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations.

(5) At any stage of the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3) –

(a) a party to the proceedings;

(b) any witness in the proceedings;

(c) where appointed, any children’s guardian;

(d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings;

(e) the child, if of sufficient age and understanding.

(6) This rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for examination.

(7) In this rule ‘duly accredited’ refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor.

  • No vires for this rule are provided for, in the usual way: that is to say, by statute. The introduction to FPR 2010 states, in terms of general rule-making powers, that ‘the Family Procedure Rule Committee makes the following rules in exercise of the powers conferred by sections 75 and 76 of the Courts Act 2003…’. There is no reference to any power in the Family Procedure Rules Committee (‘FPRC’) to make rules which, in effect, override fundamental rights such as those protected by the open justice principle.
  • FPRC powers are proscribed entirely by Courts Act 2003 ss 75 and 76. There is no statutory provision – and all powers of such a body as FPRC must be defined by statute – which enables FPRC to override the common law, still less to override the European Convention 1950.
  • The probability is that r 27.10 as a whole, and at least those parts of r 27.11 which are italicised above, are ultra vires the rule-makers and therefore a nullity.

Open court: the correct end of the telescope for family lawyers

  • So what is the position in law on open justice within civil proceedings generally (which includes family proceedings)? The common law rule is that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords).
  • Publication on its own is not to be punished, said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

… unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally.

  • As Toulson LJ mentioned (at para [33] of Guardian v Westminster), another aspect of the open justice principle was picked up by Lord Scarman – ‘a thinker ahead of his time’, and in a minority in Harman (on a point which has now been altered to the position advocated by Lord Scarman: see CPR 1998 r 31.22) at that stage – in Harman v Home Office[1983] 1 AC 280, 316. Of open justice he said (at 316):

… [The judge] is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.

(2)        OPEN JUSTICE: COMMON LAW AND CPR 1998

Common law and Civil Procedure Rules 1998

  • Probably the easiest version of the common law to follow is as declared – ie the common law principle existed long before 1998 – in CPR 1998.
  • CPR 1998 rr 31.22 and 39.2 set out the principles relevant to what is under discussion here. Rule 39.2 (it makes more sense to consider r 31.22 later) provides as follows:

39.2 General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, may be in private if –

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

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;*

(d) a private hearing is necessary to protect the interests of any child or protected party;*

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

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice….*

  • Each of the sub-paras marked * would be relevant to family proceedings; and with these and any other accretions to the common law specific to family proceedings this rule would seem to be sufficient – as it is in all other civil proceedings – to dictate when a court should sit partly or entirely in chambers. That is to say, all hearings must be in open court, and any hearing in private must be justified one or more of the grounds set out in r 39.2(3) or in any other statutory provision (eg Administration of Justice Act 1960 s 12).

Common law and family proceedings

  • So what is the law today? There is no doubt. The common law rules. It dictates what the law is and what the family courts should follow. It represents the correct end of the telescope to place the lawyer’s eye. The common law can only be altered by express primary statutory provision, if that is what the legislature seeks (for which there is no evidence). FPR 2010 r 27.10 cannot alter the fundamental freedom of expression, essential to our common law.
  • The common law – as expressed by CPR 1998 r 39.2 above – serves perfectly well; and it is the common law, it is respectfully submitted here, which family court judges should follow.
  • The third subject in the JTC paper is release of documents to the media. Again, the common law deals with this as Toulson LJ explains fully in Guardian v Westminster. Family proceedings rules on disclosure, as FPRC assert (see their letter to me dated December 2013[2]), is essentially a matter for the common law.
  • The common law is declared by CPR 1998 r 31.22 and sets out a jurisdiction which arise from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides questions of ‘use’ (in this context) and the publication of proceedings overlap (considered by me further in Family Law News [2014] of 6 August 2014: Reporting restrictions in financial remedy proceedings: a review after case management in Cooper-Hohn’ (referred to above).

‘Use’ of documents

  • CPR 1998 r 31.22 (as relevant here) provides:

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

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

(b) the court gives permission; or

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

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

  • There is no equivalent in FPR 2010 or in family procedural rules generally to CPR 1998 rr 39.2(3) or 31.22.
  • Issues of publicity for a hearing or of documents therefore arise in family proceedings, and in financial remedy proceedings in particular, in the following contexts:
  • Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
  • Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
  • Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
  • Even if (3) applies, whether a party can be restrained from use of the document.

Documents in financial remedy proceedings

  • The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo[2010] EWCA Civ 1315, [2011] 1 FLR 1427 provides a starting point:

[76] Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

  • CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. References to r 39.2 in family proceedings arise mostly only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108: by contrast in DE v AB [2014] EWCA Civ 1064 Ryder LJ managed to deal with privacy without any reference to r 39.2(3) at all).
  • In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

  • Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.
  • Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

  • If a document has been ‘read to or by the court, or [has been] referred to, at a hearing which has been held in public’ it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2:

… [25] (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.

  • In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are likely to be resolved (see eg Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)). Mr Allan’s application, on analogy with 31.22(2), failed before Munby J and before the Court of Appeal.

Release of documents to a third party

  • A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO [2014] EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents.
  • Each case, Eder J emphasised, turns on its own facts (Crest Homes v Marks[1987] AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd [2004] 1 WLR 1479 at [36]). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104, CA at [47], [52]; but see eg Y v Z [2014] EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).

(3)        LAW-MAKING: PRACTICE DIRECTIONS, PRACTICE GUIDANCE AND        PRECEDENTS

Common law

  • Substantive legislation (eg Matrimonial Causes Act 1973, Children Act 1989) creates new law; but it may also codify or confirm the common law (eg Senior Courts Act 1981 s 37 merely confirms the High Court’s inherent jurisdiction generally to grant injunctions: by contrast MCA 1973 s 37(2) creates a new jurisdiction to restrain disposal).
  • Procedural rules, cannot create new law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). They can only do what the primary legislation enables them to do (as explained above in relation to FPR 2010, FPRC and its powers under Courts Act 2003 ss 75-76).

Practice Direction, Practice Guidance and ‘gap’ rules

  • Practice guidance divides into Practice Directions, Practice Guidance and ‘gap’ rules. Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice, who can delegate to the President of the Family Division (family proceedings Practice Directions issued by the President are endorsed as being approved by the LCJ).
  • The limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.
  • Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors (above) at para [7]-[9]) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs)[2001] 1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC [2005] EWCA Civ 475 at para [48] for practice directions:

It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

‘Gap’ rules

  • If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras [37]-[39]). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be.
  • A recent breach of this principle can be seen in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In that case Mostyn J issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors [2010] EWCA Civ 908: private documents taken by one spouse unknown to the other). The ‘guidance’ was no part of the ratio of the court’s decision. It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the Law Society or the Bar Council). It fills no Bovale gap necessary to enable the court to resolve a disputed issue in that case.
  • By contrast, an example of how a ‘gap’ practice direction may fairly be given by a judge can be seen in operation by Keehan J in A Local Authority v DG & Ors [2014] EWHC 63 (Fam). He set out what he proposed as practice guidance for a parent who was being prosecuted in proceedings parallel to care proceedings, and gave advocates involved a chance to be heard by him on what he proposed. A Bovale gap was filled. The law was correctly and fairly applied.

Rules of reporting family cases

  • It must follow from the above that a reporter does not need the court’s permission in any case to report it, subject to the substantial inhibitions placed upon him/her by any court order or by the statutory controls in eg Administration of Justice Act 1960, CYPA 1933 and Children Act 1989 s 97 (especially in relation to children proceedings). The 16 January 2014 Guidance is, to that extent, unnecessary.
  • It is for the reporter to decide what should be reported, and for the press to take any risk of an application to commit (see Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 (above)). Nor is it for the judges to advise the press as to what they may or may not publish, as Sir James (then Munby J) pointed out in Spencer v Spencer [2009] EWHC 1529 (Fam) (recalled eg by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam)).

Precedent and citation of authorities

  • The fact that a judgment is published does not mean it is a precedent in any real sense of the word; still less does it mean that it is read. Citation depends on the authoritativeness of what is reported. A summary of what courts permit to be cited is in Practice Direction of 9 April 2001: Citation of Authorities [2001] 1 WLR 1001.
  • This practice direction direct – and it remains good practice in all courts – that save where a judgement clearly indicates that ‘it purports to establish a new principle or to extend the present law’ (para 6.1) certain categories of case may not be cited at all in court (para 6.2) (ie citation, on this criterion, is unlawful):
  • Applications attended by one party only
  • Applications for permission to appeal
  • Decisions which establish only that a case is arguable
  • All county court cases (there was no family court then) save to deal with an issue not decided at higher level which affects decisions at county court level.

(4)        DOCUMENTS AND OPEN JUSTICE

Use of court documents

  • Release of documents to a third party – essentially as covered by CPR 1998 r 31.22, which can be said to represent the common law and to apply in family proceedings – is the subject of the third part of the consultation. An essay to deal with the subject at common law is herewith.
  • The lead case is R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as approved by Kennedy v The Charity Commission [2014] UKSC 20 (decided after the essay below was written). Neither of these cases are referred to in the CTJ paper.
  • A simple conclusion, which answers the third part of the CTJ paper (‘III’) on a principled basis, is that the common law rules set out in CPR 1998 r 31.22, apply to all family proceedings. This is a conclusion in line with the Court of Appeal in Allan v Clibbery. If courts follow the common law – which they must – then therein lies the answer to III; and no more need be said.
  • If family judges feel they need principles to be enunciated that is for them, not for the CTJ or for Guidance from Sir James (for the reasons set out in section (3) above). The guardian case is the starting point; CPR 1998 r 31.22 the common law in summary; and, where need be, a European Convention 1950 balance between Arts 6(1), 8 and 10 (with Human Rights Act 1998 s 12(4) leavening, as need be) will be required to be conducted.
  • If children or other factors requiring privacy are involved then principles summarised on CPR 1998 r 39.2(3) will apply.

REPLY TO CTJ CONSULATION

‘Transparency’: family court emperor’s clothes

  • ‘Transparency’ is a euphemism used by family courts to justify often unlawful privacy. The history of this development is outlined by Thorpe LJ in Allan v Clibbery. Use of the term gets the law the wrong way around (the ‘wrong end of the telescope’ argument summarised above). Now is surely the time for Sir James to follow the logic of so many of his own decisions – starting with Allan v Clibbery at first instance – and to play the small boy at the family law privacy emperor’s court.
  • The panoply of case law and court rules all come down to there being no rule of privacy: the privacy emperor has no clothes. FPR 2010 r 27.10 is unlawful. In each family case – and general principles to define exceptions will be quickly developed by the common law, that is by family judges – open justice is the rule. To control indiscriminate open court hearings in family proceedings, common law principles (as summarised in CPR 1998 rr 39.2(3)) apply. This is a matter of law.
  • In respect of documents, CPR 1998 r 31.22 is the starting point, as further explained by ota Guardian v Westminster; and as elaborated upon in the essay below.
  • In the meantime the 16 January 2014 ‘guidance’ in the form put out by Sir James is not strictly necessary. It is based largely on a misunderstanding (see eg discussion of the vires of FPR 2010 r 27.10 and 27.11) as to the role of the common law and the open justice principle in family proceedings, balanced against the common law and existing statutory constraints upon that principle in family proceedings.

Reply

  • The CTJ paper invites comment on four areas of family proceedings work (as already summarised):
  • Comment or Sir James’s Practice Guidance of 16 January 2014. This Guidance is very personal to Sir James and shows no signs of having any real force in constitutional terms (see eg Constitutional Reform Act 2005 and Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171).
  • Listing of cases (outside the scope of this reply).
  • Further ‘guidance’ which, it is said, Sir James ‘proposes to issue (sic)’ on disclosure of documents to the media.
  • ‘Preliminary, pre-consultation views’ on the hearing in public of certain types of family case.
  • I feel I can offer little on (2); and that what I say about ‘guidance’ issued without reference to Constitutional Reform Act 2005 or Bovale is sufficient. Consultation on (4) is redundant if family courts consider themselves bound by common law and European Convention 1950 principles (as set out above). In my opinion they are bound by such principles; and that opinion is bolstered by a number of Sir James’s own decisions since he became a High Court judge.
  • Of (3): if the common law (summarised in CPR 1998 r 31.22) is applied – as, once more, I say it must be – then the need for any more on the subject of documents disappears. I commend my essay below on applicable legal principle (below) to CTJ (and to Sir James if it is he who takes this on for CTJ), on the subject of release or other ‘use’ of court documents.

OPEN JUSTICE AND PRIVACY IN FAMILY PROCEEDINGS

A new definition of privacy and open justice and family proceedings

  • The common law rule for any civil (including family) proceedings is simple. Privacy in any case must be justified. (FPR 2010 rr 27.10 and 27.11, and any other similar FPR 2010 rule, are to that extent unlawful, and should be revoked as soon as possible, please).
  • Justification of privacy in many family court cases and by reference to common law principles summarised in CPR 1998 r 39.2(2) will often be relatively straightforward. In children cases at least three statutory restrictions apply (as fully explained by Sir James in Re J [2013] (above)).
  • Release and other ‘use’ of documents will be governed by the common law as summarised in CPR 1998 r 31.22, as explained by the case law referred to in the essay below and as acknowledged by FPRC itself in their letter referred to above.
  • The CTJ paper asserts:

The underlying principles [of ‘transparency’] are two-fold. First, there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. Secondly, the public has a legitimate interest in being able to read what is being done by the judges in its name.

Open justice: an absolute; justification of privacy

  • The need for ‘greater transparency’ is guaranteed by common law: indeed openness in justice is an absolute (see eg European Convention 1950 Art 6(1)).
  • Subject to appropriate judicially directed redaction, the public – so far as they want to – may read what is done in the family courts (the Sussex Justices principle). Any restriction of open justice must be justified according to legal principle (eg CPR 1998 r 39.2(3)).
  • In children cases there are a number of statutory exceptions to open justice, and thus limitations on, for example, liberty to ‘read’ or otherwise use documents from proceedings; and in other types of proceedings, r 39.2(2) exemptions may be used to support a privacy claim under r 31.22. This may depend, for example, on whether documents were ‘read’ in court, or whether an implied undertaking as to further use of disclosed documents applies.

‘Open justice principle’ in family proceedings

  • If the short set of principles summarised here are agreed to be a summary of English common law then it remains only to assert the ‘open justice principle’ in all family proceedings, to revoke offending rules, and to be clear as to the varied sources – statutory and common law – of the principles which guide restrictions on openness.

David Burrows

31 October 2014

1        DISCLOSURE TO THIRD PARTIES: GENERAL PRINCIPLES

Collateral disclosure

  • The rights of a party under European Convention 1950 Arts 6(1) and 10 bring into question the extent to which documents produced in court may be released to a third party whether (say) for publication or for private use. Here the public interest in an open trial – ‘the open trial principle’ – can be seen in conflict with the principle that a person who discloses documents in private litigation suffers a real incursion into his/her privacy. Any earlier case law, especially where procedures in the family court may be thought to conflict, must be seen in the light of the common law principles explained in Guardian v Westminster Magistrates’ Court (below).
  • As will be seen particular questions arise in family proceedings: the interests of children raise their own concerns. Financial remedy proceedings may give rise to special rights not to disclose derived from the concerns of family judges that spouses are not discouraged from disclosure by fear that their information will be passed on to others such as for tax assessment. A party producing documents in financial remedy proceedings may be covered by a measure of self-incrimination privilege, for example in respect of disclosure to tax authorities (R v K [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807). Subject to that disclosure is a matter which is regulated by common law principles (as explained in the main reply to the consultation); and by such inherent jurisdiction as the court may have to restrict disclosure.

Court’s inherent jurisdiction to control its own procedure: open justice principle

  • The jurisdiction of a court to permit release of disclosed documents (for example for publication) was considered by the Court of Appeal in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343. The court considered that each individual court’s jurisdiction to control disclosure of documents, where those documents had been used in court, was a matter for a court’s inherent jurisdiction to control its own procedure (and seeAttorney General v Leveller Magazine [1979] AC 440).
  • Such procedure was governed by the ‘open justice principle’ said Toulson LJ. It was founded in the common law. (The approach of Toulson LJ to common law development in this case is specifically approved by the Supreme Court in Reilly’s Application for Judicial Review [2013] UKSC 61, [2013] 3 WLR 1020 at [61]; and again in Kennedy v The Charity Commission [2014] UKSC 20).
  • It is a matter for the individual court to which application for release of documents is made, to determine to what extent this principle applies:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied….

[73] More fundamentally, although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention.

  • These general principles must now be considered in the light of particular circumstances:
  • Where permission to use documents for publication (ie release of documents so they can be published or otherwise seen by third parties) is requested
  • Where permission is sought for disclosure to government authorities (eg HMRC)

2        PERMISSION FOR PUBLICATION

Permission to third parties

  • In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 the Court of Appeal reviewed the law on access to court records and documents, in the light of Human Rights Act 1998 and of common law developments in England and Wales and abroad. Toulson LJ, with whom Lord Neuberger and Hooper LJ agreed, recognised (at para [90]) that the court’s decision ‘breaks new ground in the application of the principle of open justice’ but not, he thought, ‘in relation to the nature of the principle itself’.
  • The case concerned a successful United States extradition application of two men on bribery charges. The Westminster magistrate had held that she had no power to release to the Guardian documents which she had read and to which she had made reference in court. The Divisional Court agreed with the magistrate. The Court of Appeal considered the law afresh. It allowed the appeal and ordered that the Guardian should have access to the papers.

[87] In this case the Guardian has put forward good reasons for having access to the documents which it seeks. There has been no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. Accordingly, its application should be allowed.

‘The open justice principle’

  • In the course of his judgement Toulson LJ (at [33]) referred to Harman v Secretary of State for the Home Department [1983] 1 AC 280. He suggested that the principles set out in Harman can be said to be restored by r 31.22. In Harman Lord Scarman (at 316) made the following point on open justice:

‘… Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.’

  • He then refers (at [34]) to Lord Bingham CJ in the Court of Appeal in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 AllER 498 (at 511-512):

Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.

  • The court stressed the fact that for open justice to work in practice – where judge’s pre-read and where much evidence is in writing and literally taken as read – then it must be axiomatic that documents be released. This will be subject to any argument that public or third party disclosure will cause any risk of harm which may be caused to ‘the legitimate interests of others’. Toulson LJ explains this principle as follows:

[85] In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong…. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

3        APPLICATIONS FOR ‘USE’ BY THIRD PARTIES

Third party claims for release of financial remedy documents

  • A different set of principals can be seen at work where third party application is made for documents disclosed in financial remedy proceedings (eg under MCA 1973). This may occur, for example, where HM Revenue and Customs seek documents or information which has been disclosed. (Release to the Child Support Agency has now been put on a statutory footing: ). In the absence of agreement of both parties, the documents can only be released if the court orders. The principle was explained in the following terms by Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2010] EWCA 1315, [2011] 1 FLR 1427:

[76] Parties to a matrimonial dispute who bring before the court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

  • High Court authorities conflict. The only reported example of the Clibbery v Allan (above) principles being tested in the High Court since introduction of Family Procedure Rules 2010 arises in Revenue and Customs v Charman & Anor [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119, Coleridge J. Unfortunately Coleridge J does not reflect upon the common law position referred to above; and treated himself as proceedings under a rule which could not apply (FPR 2010 r 29.12(1)). He does not appear to have been referred to Guardian v Westminster Magistrates’ Court (above; though HMRC v Charman was decided seven weeks after the Guardian case). He does not look at the issue in the context of, or on analogy with, r 31.22 (as did the Court of Appeal ten years earlier in Allan v Clibbery (above; though Coleridge J does refer to Allan v Clibbery).
  • HMRC v Charman is directly in conflict with the views expressed by Charles J in A v A; B v B (considered separately below). That case considers the separate but analogous principle of whether a judge him/herself has any separate role in disclosure of documents to public authorities. Coleridge J only considers two cases in his judgement, and A v A; B v B is not one of them.

4        PRODUCTION ON COURT’S INITIATIVE

Report by the court

  • A separate question arises as to whether, and if so when, a judge should take it upon him/herself to report what may be regarded as abuses arising from the proceedings. This question was considered in considerable detail by Charles J in A v A; B v B [2000] 1 FLR 701. The judgement is technically obiter; but it contains a number of insights into the basis on which a judge might look at the issues of confidentiality which arise where the court is considering referring on to public authorities, balanced against the public interests which arise in such a case. Charles J pits his own views of such matters against those which can perhaps be seen in the two decisions on the same subject of Wilson J.
  • In the later Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 the Court of Appeal considered A v A; B v B but only in neutral terms (at para [70]) and without substantive comment. It remains the fact that this jurisdiction has not been considered (save in Allan v Clibbery) in any detailed way in the Court of Appeal, still less in the Supreme Court. Confronted by an application by a third party (such as HMRC) the adviser has no principled higher court guidance as to the principles to be applied.
  • A v A; B v B involved two ancillary relief claims which had been listed together before Charles J, because the two husbands’ joint business interests meant there was a considerable overlap in their financial affairs. By the time of the hearing the husbands had admitted attempting to hide the true extent of their assets and of their tax liabilities. Agreement was reached at the end of the first day, and consent orders were approved by the court. Before the orders were drawn up, Charles J indicated that he was considering whether to refer the papers in the case to various third parties, including the Inland Revenue and the DPP. The cases were adjourned to enable the parties to prepare argument on issues relating to disclosure. The judge sent a draft judgment to the parties which dealt with issues of disclosure to public authorities, to give them an opportunity to make further submissions.
  • This case will be considered at some length since it provides a full judicial essay in explaining when the court should, on its own initiative, breach any implied undertaking given to it, override the general principles in CPR 1998 r 31.22, and to adopt a principled approach to the overriding of the self-incrimination privilege which otherwise applies in financial remedy proceedings (R v K [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807).

Disclosure volunteered by the court

  • Charles J (at 711-2) started from the proposition that there was no clear authority to which he had been referred or that he had found ‘relating to the approach the court should adopt in deciding whether itself to initiate and make disclosure of material coming to its attention’. He referred extensively to the decisions of Wilson J in S v S (above) and R v R (Disclosure to Revenue)[1998] 1 FLR 922.
  • These cases, he said, confirmed the lack of directly relevant authority. He distinguished his decision from that of Wilson J. Those decisions were concerned with granting permission (prospectively or retrospectively) to a party to make disclosure or to a third party to receive disclosure. His decision concerned ‘as to what disclosure should be initiated and thus volunteered by the court’. But he continued: ‘…in my judgment the approach to both questions should fall to be determined by the same general underlying considerations’.
  • In either respect – disclosure to third parties on application by a party or third party, or volunteered by the court – Charles J took the view that the factors for the court to

consider were as follows (at 712):

Generally 

In my judgment when a court considers issues relating to disclosure of documents or information it is important to identify why the court’s permission or direction is necessary and thus (i) the relevant statutory provisions or rules, (ii) the extent and purpose of the relevant duties of confidence, (iii) the relevant private interests, and (iv) the relevant competing public interests.

  • Under the heading ‘statute and rules’ he sets out references to Administration of Justice Act 1960 s 12 (which he holds not to be relevant in these proceedings) and the then relevant rules in Family Procedure Rules 1991 as follows:
  • FPR 1991 r 2.66(2)
  • FPR 1991 r 4.16(7) with Re PB (Hearings in Open Court)[1996] 2 FLR 765 on r 4.16(7) which is in similar terms)
  • FPR 1991 rr 10.15 and 10.20

Release of documents to the Attorney General

  • In Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P considered the extent to which that court had a right – a duty even – to release confidential documents to the Law Officers in the context of children contempt proceedings. Papers had been released by the court so that consideration could be given by the Attorney General to an application for committal of a mother in child abduction proceedings. Her advocate – ‘as he was entitled to’ (para [11]) – challenged the standing of the law officers to make application for her committal (the President answered this question fully in paragraphs [14]-[17] of his judgement).
  • Of the court’s entitlement to release documents to ‘some outside agency’ Sir James Munby P said:

[12] It is well known that, on occasions, judges refer the papers in a case which has been before them to some outside agency with a view to that agency considering whether or not to take any steps arising out of the matters referred by the judge. Sometimes the papers are referred to the police, the Crown Prosecution Service or the Director of Public Prosecutions with a view to the possible commencement of criminal proceedings. Sometimes the referral is to some professional or other regulator. Sometimes the referral is to Her Majesty’s Revenue and Customs. Sometimes, as here, the referral is to the Law Officers. No doubt there are other instances. Although the basis upon which such referrals are made has not very often been explored in any depth – the judgment of Charles J in A v A; B v B [2000] 1 FLR 701 is an exception – there can be no question about the right of the judges to act in his way. Nor, in my judgment, can there be any objection to a judge, as here, referring the papers to the Law Officers with a view to them considering whether or not to bring proceedings for contempt; and, I should make clear, whether the contempt is criminal or, as in the present case, civil….

Confidentiality and the court’s order

  • Charles J considers any role he might have in ordering release of court documents in the context of confidentiality. The documents he was considering are confidential documents disclosed in private proceedings. He points out (at 715) that duties of confidence can arise in various ways which include where documents are provided as a duty or volunteered, or in accordance with court rules. The duty of confidence will be defined as follows:

In each case the reason(s) why, and the purpose(s) for which, the information is volunteered, or the duty is imposed will define the extent of the duty of confidence, and thus of the use or disclosure that is authorised without the need to seek the permission of the provider of the information, or to consider where the overall public interest lies.

  • He is clear in his view that confidential information which is disclosed pursuant to statutory or other duties should be used only for the purposes for which it is disclosed (which proposition he backs with extensive authority). It is in the public interest that such disclosure should be limited; but ‘it must be remembered that such limitation includes use and disclosure in the overall public interest’. He connotes these limitations with the implied undertaking’ in relation to disclosed documents.
  • He concedes however, that one of the purposes of the implied undertaking is to induce or encourage litigants to make full disclosure. He cites the comments of Lord Oliver in Crest Homes plc v Marks[1987] 1 AC 829, 857F Lord Oliver as an example:

Mr Morritt, however, on behalf of the corporate appellants, has rightly drawn attention to the importance, stressed in Home Office v Harman [1983] 1 AC 280, of preserving the implied undertaking. It should not be relaxed, it is said, as a matter of public policy, for otherwise litigants may be deterred from making full and frank disclosure.’

  • He concludes his survey of confidentiality, the implied undertaking and the issue before him (disclosure to a third party) by looking at these issues in the light of the ancillary relief jurisdiction. He refers to the duty of disclosure arising from Livesey v Jenkins (at 717):

It is well established that in proceedings for ancillary relief there is a duty on the parties to provide full and frank disclosure as to their means and other relevant circumstances (see, for example, Jenkins v Livesey (Formerly Jenkins) [1985] 1 AC 424, 437H—438A, sub nom Livesey (Fornerly Jenkins) v Jenkins  [1985] FLR 813, 821C and Baker v Baker  [1995] 2 FLR 829, 831—833 and 837). In my judgment this means that parties do not have a choice as to what information they provide relating to their means and other relevant circumstances. In my judgment, such information, whether provided by affidavit, or in answer to questions (before or after orders of the court), is provided under compulsion for the purposes of the application of the implied undertaking.

  • On the basis that ancillary relief proceedings are generally held in private then ‘rights of confidentiality and privilege are reserved in respect of all material provided by the parties for ancillary relief proceedings with the consequence that the implied undertaking applies to all of that material’. Thus, he says, his decision on further disclosure should operate as follows (at 718):

(a) that if a party had sought leave to disclose or use the material the implied undertaking would apply and disclosure or use in breach of it would be a contempt. This corresponds with the point made above under the heading ‘Statute and rules’ that disclosure of material covered by rr 10.15 and 10.20 of the 1991 rules without the permission of the court would be a contempt, and

(b) that in any event the court should apply an approach to those questions equivalent to that taken when the implied undertaking applies.

  • He concluded his decision in relation to confidentiality and the implied undertaking by referring to the absence of statutory provision preventing the court from ordering disclosure. From this absence he concludes that he is entitled to ‘release or modify’ the confidentiality conditions on which documents are disclosed between the parties:

In the absence of statutory provision precluding use in the overall public interest, the general position is that confidential material can be so disclosed, and used, and this is reflected in the cases relating to disclosure of material with the leave of the court, whether that leave is required because of the implied undertaking or by a rule of court (see for example Re Arrows Ltd (No 4) [1995] 2 AC 75, 103H—104,…  Re EC (Disclosure of Material)  [1996] 2 FLR 725, 728E—733H and Vernon v Bosley (No 2) [1998] 1 FLR 304, 319B—D and 344F—G). It follows in my judgment that a court can release or modify the implied undertaking, or give leave to disclose material subject to it, if it concludes that to do so would be in the overall public interest.

  • On the basis of its findings as to the inherent jurisdiction of the court to define its own jurisdiction on this subject (see ota Guardian News and Media Ltd (above)) it seems unlikely that a Court of Appeal faced with this decision, would differ from Charles J, and his view of the extent of his discretion as to disclosure to third parties. And this might be the more so if the public interest (eg that individuals should pay their taxes) is held to demand it.

Relevant public and private interest

  • Charles J summarises how he sees the relevant public interests (at 722), and then the professional duties which arise and impact upon his decision (he had been concerned as to the extent to which lawyers in the case may have permitted the court to be misled). He holds that there are ‘strong public interests’ as follows:
  • In ‘the proper and efficient investigation and prosecution of crime’;
  • That all tax should be paid and that in serious cases evaders of tax should be convicted and sentenced (a ‘factor in this public interest is that taxpayers have a duty to inform the Revenue as to their affairs and cannot remain silent’)
  • In the proper, fair and efficient administration of justice.
  • A v A; B v B was published some years before R v K and must be seen alongside that decision. For present purposes the decision in R v K concerns the extent to which a party to financial remedy proceedings can claim self-incrimination privilege in subsequent criminal proceedings (as compared with a judge dealing with an application to release or ‘use’ documents; or to release information on his/her own initiative). Self-incrimination privilege is available in other proceedings, because disclosure of information in financial remedy proceedings is treated as being required by compulsion. The balancing of public interests in any question of overriding self-incrimination privilege is governed by the Privy Council decision in Brown v Stott [2001] 2 WLR 817, PC.
  • In that case, Lord Bingham explained the qualification of any right to self-incrimination privilege, comprised as it is as part of the right to a fair trial. In particular he stresses the balance of the needs of the individual as against those of the community. He explains his view as follows (at 704):

The jurisprudence of the European court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52.

Release to a public body: the balance after R v K

  • In R v K the Court of Appeal treated Brown v Stott as establishing the following principle:

[41] …. that a restriction of an accused person’s right not to incriminate himself will not infringe his right to a fair trial provided that the compulsion under which the information is obtained is of a moderate nature and the use of the evidence obtained by it represents a proportionate response to a pressing social need.

  • So said the court if they were to allow the Revenue to rely on K’s evidence – in effect to release it for open use (in terms of r 31.22) they must consider the extent of the ‘social need’. In R v K it was to suppress tax evasion; but in the context of the information being required of him originally under threat of imprisonment, which the court regarded as ‘severe’. They reasoned their view of release or not of the information, and their discharge of the balancing exercise required of them, as follows:

[42] … The social purpose for which the Crown seeks to adduce the evidence in criminal proceedings is the suppression of tax evasion. No doubt the protection of the public revenue is an important social objective, but the question is whether the admission of evidence obtained from the accused under threat of imprisonment is a reasonable and proportionate response to that social need. In our view it is not. This is an unusual case in as much as the Crown accepts that without the admissions made by K it has insufficient evidence to maintain a case against him. In many cases information obtained by way of disclosure in ancillary relief proceedings will provide leads that enable the Crown to obtain evidence from other sources that is sufficient to support a prosecution and in such cases there will be no need to rely on evidence obtained from the accused himself. That has not been possible in this case, but even so, we do not think that the need to punish and deter tax evasion is sufficient to justify such an infringement of the right of the accused not to incriminate himself.

Release of documents; self-incrimination privilege

  • R v K dealt with the position as to privilege in respect of information already available to the Crown, and whether it could be deployed in court. A v A deals with the prior position. To that extent the two cases are no analogous. Charles J’s analysis, though obiter, holds true for a judge’s assessment of the balance required to release the information and documents. Whether or not they are covered by self-incrimination privilege is a second stage in the process of their use by the public body concerned.
  • Charles J summarised his judgement with a list of conclusions. Perhaps the most direct and assertive of the role of the judge – to avoid the cheapening of the law (as he sees it) – is as follows (at 746):

(13) It seems to me that generally there is very considerable force in the proposition that as Wilson J said in S v S tax evasion is greedy and antisocial which has the consequence that the court should not condone it, or be seen to condone it, in any way. As Wilson J says in S v S at 777G:

It feels unseemly that a judge to whose notice tax evasion is brought should turn a blind eye to it by not causing it to be reported to the Revenue. In one sense that would almost cheapen the law.

I would go further and say that to do so would cheapen the law.

[1] See comments of Munby LJ in eg Richardson v Richardson [2011] EWCA Civ 79

[2] After careful consideration the Committee concluded that the Family Procedure Rules in relation to disclosure provide as much as is needed. The Committee had not wanted to provide for open-ended disclosure by list, so had included only those provisions that were necessary. The rules in Part 9 (Applications for a financial remedy) and 21 (Miscellaneous Rules about Disclosure and Inspection of Documents) were not restrictive and did not undermine the common law duty of disclosure. It was considered that this was a training issue rather than one that required rule amendment.

CONSULTATION AND FAIRNESS after Mosley

What is expected of a public body consultation

In R (ota Moseley) v London Borough of Haringey [2014] UKSC 56 the Supreme Court considered how a statutorily dictated consultation process should be undertaken by a public body (in that case, a local authority housing department). In doing so they considered what forms of consultation might generally be expected of a public body: of statutory and common law consultation.

Consultation has recently been considered here: in the context of recent proposals put out by Sir James Munby P (at https://dbfamilylaw.wordpress.com/2014/08/26/consultation-sir-james-is-but-one-voice/ ) and by Courts and Tribunal Judiciary consultations on children and vulnerable witnesses in family proceedings (in reality Sir James Munby P also: see  https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ).

‘Legitimate expectation’

Of consultation more generally, in ota Mosley, Lord Reed stressed that there is ‘no general common law duty to consult persons who may be affected by a decision’ (para [35]); but explained that where there is a ‘legitimate expectation of such consultation’, a duty arises:

[35] … A duty of consultation will … exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation. The general approach of the common law is illustrated by the cases of R v Devon County Council, Ex p Baker [1995] 1 All ER 73 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213…

In a passage concurred in also by Lady Hale and Lord Clarke he explained how he saw a consultation process working ‘to ensure public participation in the local authority’s decision-making process’, that is:

[39] In order for the consultation to achieve [the objective of public participation], it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know “what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response”: R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, para 112, per Lord Woolf MR.

The role of fairness in consultation is, as by Lord Wilson, generally taken to be R v North & East Devon HA exp Coughlan [1999] EWCA 1871: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html ) where Lord Woolf MR said:

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.

The application by Ms Mosley

Mosley was an application by a single mother and resident of Haringey who, until 1 April 2014 had received full council tax benefit. From then she was subject to a new scheme, which Lord Wilson explained as follows:

[2] … From 1 April 2013, however, local authorities were required to operate a new scheme,

entitled a Council Tax Reduction Scheme (“CTRS”), which they were required to have made for themselves. Before making a CTRS, local authorities were required to consult interested persons on a draft of it. Between August and November 2012 the London Borough of Haringey (“Haringey”) purported to consult interested persons on its draft CTRS, following which it made the scheme in substantial accordance with its draft.

[3] In these proceedings [Ms Mosley] until 1 April 2013 had been in receipt of what I will describe as full CTB (by which I mean at a level which had relieved them entirely of their obligation to pay council tax), applied for judicial review of the lawfulness of the consultation which Haringey had purported to conduct in relation to its draft CTRS.

Lord Wilson explained that the judicial review application before the court (at para [3]) was that ‘Ms Mosley asked the court to quash the decision which on 17 January 2013 Haringey had made in the light of the consultation’ they had undertaken. Underhill J had dismissed the application (at [2013] EWHC 252 (Admin)); and the Court of Appeal had dismissed an appeal from Underhill J.

The consultation required to be undertaken by Haringey was statutory. Local Government Act 1992 (as amended) Sch 1A para 3 provides: ‘(1) Before making a scheme, the authority must … (c) consult such other persons as it considers are likely to have an interest in the operation of the scheme’. Haringey published a draft scheme and, as Lord Wilson puts it (at para [10]) ‘purported to embark on the consultation required of it by paragraph 3(1)(c)’. The point at issue was that in presenting their draft scheme they treated the persons whom they considered likely to have an interest – of whom Ms Mosley was unquestionably one – as being able to assume and understand (almost osmoticly, it seems) what were the options which they had discarded. In making that assumption, the local authority was at fault.

Duty to consult: duty of fairness

So how does a duty consult arise? It arises, says Lord Wilson, ‘in a variety of ways’; but in particular by the common law duty on a public body ‘to act fairly’. Where non-statutory the duty can be ‘illumined by the doctrine of legitimate expectation’:

[23] … irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.

[24] Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in the determination of a person’s legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair.

So a consultation must be fairly conducted and fair. Lord Wilson continued by setting out his and, from ota Osborn (above), Lord Reed’s views of the main bases for fairness in consultation:

[24] … First, the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested” (para [67] of Osborn). Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel” (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not “Yes or no, should we close this particular care home, this particular school etc?” It was “Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?”

In ota Osborne Lord Kerr explained procedurally fair decision-making. This is needed to avoid, first, a sense of injustice; and this is avoided, secondly, by engendering in those who should be entitled to be involved in the process, a sense that their views are respected:

[67] There is no doubt that one of the virtues of procedurally fair decision-making is that it is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested. As Lord Hoffmann observed however in Secretary of State for the Home Department v (AF (No 3) [2009] UKHL 28[2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged.

[68] The first was described by Lord Hoffmann (ibid) as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions.

Respect for ‘dignity’: views of those ‘whose rights are significantly affected’

He concluded this passage by stressing the importance he attached to the decision-maker having ‘respect for the dignity’ of consultees.

[68] … Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written (“How Law Protects Dignity” [2012] CLJ 200, 210):

“Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea – respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.”

AS can be seen, Lord Wilson adds a third basis for consultation to Lord Kerr’s list: namely that a public body decision-maker should offer as an option that a consultee may wish to propose other options; or the decision-maker may set out other options considered by him/her but rejected (see eg R (ota United Company Rusal Plc v The London Metal Exchange [2014] EWCA Civ 1271).

Quashing order: failure to consult not fair

Mosley concluded by holding that the declaration as to the failure to consult being unfair and therefore unlawful was granted (paras [31] and [33]); but the quashing order sought by Ms Mosley was considered disproportionate. Of fairness: knowledge as to the options available as alternatives to the council’s proposed scheme could not be assumed in consultees. For example, Lord Wilson himself had difficulties on the papers before the court in understanding why Haringey had decided to reject all options available to hem. His deduction from this was:

[31] Haringey’s message to those consulted was therefore that other options were irrelevant and in such circumstances I cannot agree that their assumed knowledge of them saves Haringey’s consultation exercise from a verdict that it was unfair and therefore unlawful.

The view of the majority, expressed by Lord Reed, was to concentrate more on the statutory aspect of this particular consultation. That said, general comments adopted by all Supreme Court justices make it clear that the requirement for consultation derives from legitimate expectation; and that that involves, amongst other things, a consideration of the reasonably applicable options.

Fairness is a more general aspect in any consultation: the difference between Lords Wilson and Kerr and the majority on the general principle is minimal; and can mostly be traced to whether the duty to consult arises from statute or can be inferred – eg by reference to legitimate expectation – from common law.

#CSAINQUIRY: PLEASE RESIGN, MRS WOOLF

Dear Mrs Woolf

No shame in standing down

A substantial number of people – especially survivors and those concerned with the progress of the child sex abuse inquiry (as now constituted – urge you to review your position as chair of the child sex abuse inquiry and to resign. There is no shame in that. It sounds, from your session with the Home Affairs Select Committee, as though the first approach from the Home Secretary was brief. Now you know more about the job and have considered it in the light of your other commitments and your expertise, you can honestly say you know you are not the appropriate person for the role.

It is generally known that Mr Vaz has asked you to respond by tomorrow to a number of questions arising from the Committee session. Separately a survivor has raised the operation of the inquiry with the Home Secretary in judicial review proceedings.

Recommendations to the Home Secretary

Upon your resignation we urge you to recommend the following to the Home Secretary: first, that she appoints a specialist family law High Court (or higher) judge to take your place; secondly, that this inquiry is now set up formally under Inquiries Act 2005; and, thirdly, that in so doing the Home Secretary recognises (as we shall explain) that the panel she has appointed may be experts as witnesses or assessors.

Your links with people such as Lord and Lady Brittan made your position untenable from the start; but we do not wish to dwell on that here. We focus on your expertise.

Review of children law for the 21st century

The recommendations from this inquiry provide an opportunity to focus on the working of Children Act 1989 (especially Part 3) and Children Act 2004 Part 4; and to review their working in a truly radical way. It sounds as though you may not even have read these statutory provisions, still less that you are familiar with them. It goes much further than Acts of Parliament. There is a forest of guidance (eg that issued recently by the police, President of the Family Division etc), delegated legislation, relevant case law and so on. You need a close familiarity with, for example, the inter-agency operation in individual areas and Working Together to Safeguard Children (March 2013); and with the inter-agency relationships, and their inter-action with criminal and family courts.

You do not have an understanding of these background aspects to the subject. It would be professionally disingenuous, we believe, to suggest you do have the relevant expertise. You are, after all, presented by the Home Secretary as a lawyer; but from a very different field. In European countries you would be a notary; whereas the role required is of an advocate which is the back-ground from which judges come.

Perhaps you could explain this to the Home Secretary and that sitting occasionally as a magistrate – ie a lay-person – only re-enforces the point.

Confidence of survivors

Survivors need someone in whom they have confidence. You did not assist yourself by calling them ‘victims’ and by asserting that you are not part of the ‘establishment’. You cannot ‘represent’ the survivors (in any real meaning of the word ‘represent’). Indeed you must not. Your role must be independent. It is the role of advocates to represent (by definition).

Indeed as a chair of an inquiry you should represent no one. That is a serious misunderstanding of your role. A judge represents no-one but the law s/he upholds.  A person who chairs and conducts an inquiry must be in much the same adjudicative position.

Expert witness or assessor: not part of inquiry panel

Finally, and in fairness to you, you are a lawyer. We therefore ask you to draw to the Home Secretary’s attention the very real difference between the inquiry chair, whose job is judicial and inquisitorial; and that of the specialists, independent expert witnesses, and lay witnesses – survivors, politicians, police, social workers and many others in authority – on whom the inquiry must call and from whom it must hear evidence. The present panel is composed of a confusing mixture of individuals who are not there in a judicial capacity. At most two or three could be with the chair as assessors; but in his/her judicial capacity, any judge who chairs the inquiry can decide that later. A wide panel only divides, and thus confuses its rule – surely?

Please resign now: you will be respected for it. If you continue you will seriously lame the inquiry from its start.

#CSAinquiry: RESPONSE TO CONSULTATION ON CHILDREN AND VULNERABLE WITNESSES

RESPONSE TO CONSULTATION ON

Interim Report of the Children and Vulnerable Witness Working Group – 31 July 2014[1]

This is my response – submitted on 5 October 2014, but as yet unacknowledged – to the ‘vulnerable witness’ working group set up earlier this year. It is published by me now since I do think – see https://dbfamilylaw.wordpress.com/2014/10/26/csainquiry-what-the-inquiry-must-consider/ – that it could form an important aspect of the work of the Home Office’s proposed child sex abuse inquiry – #CSAinquiry.

SUBJECTS OF THE PAPER: ‘PROTECTED INDIVIDUALS’

A consultation paper

  • The working group on ‘children and vulnerable witnesses’ is appointed by the Judiciary and Tribunals Office. Its authors are described as being ‘set up’ by Sir James Munby P with aims set out in his ‘12th View’ from his chambers (4 June 2014). In what follows their ‘interim report’ will be treated as a consultation document issued by a public authority[2] – namely from the Ministry of Justice. It will be responded to accordingly.
  • Responses are sought by 3 October 2014 at 5 pm. The working group seems to be entrusted with a very important job, which affects people who are particularly ‘vulnerable’ – by definition. It is intended that its job be completed in a three weeks (by the end of October 2014) because the Ministry of Justice demands it. I believe this is unfortunate for reasons which are set out below. It is urged to take considerable care. The President himself (as will be seen below) has speculated that primary legislation may be required. This cannot be done in only a few weeks.

‘Proposals and initial recommendations’

  • Following the group’s one meeting it has put forward a variety of ‘proposals and initial recommendations’ (para 13). Whether or not the term ‘vulnerable witness’ should be used seems to be open (para 9; but see para 13(iii) which seems to close off the point again).
  • The group questions whether its work should ‘focus on reform in public law[3] and on private law cases involving domestic abuse’ (para 10).
  • In summary the initial recommendations are:
  • ‘The reforms’ should apply to all family court cases ‘from the outset’ (para 13(i))
  • There should be a new ‘mandatory[4] rule’ for ‘children and vulnerable witnesses and parties’ with PDs and Guidance to be ‘inserted’ in FPR 2010 as soon as possible (13(ii) and (iv)); and there should be ‘a new Part 4 to the FPR’[5] (13(v)). This is to be drafted by the working group with the Family Justice Council etc (13(xvi)[6]).
  • Paras 13(vi)-(vi) deal with the main content of ‘the rule’
  • Paras 13(vii)-(x) require advocates and litigants in person to identify ‘vulnerable’ parties etc
  • A practice direction for FJC[7] guidance to judges is recommended (13(xi); and the status of judicial discussions which children should be clarified (13(xii)).
  • Special measure should be made for vulnerable witnesses; and ‘the rule’ should contain details as set out in paras 13(xiii) and (xiv).
  • There should be training for judges[8] and advocates (13(xvii)-(xix)) and ‘as part of the (sic) tool-kit’.[9]
  • Responses on these three areas – the initial recommendations, the subjects of the reforms (‘vulnerable witnesses’ or otherwise) and the span or ‘focus’ of the work – as well as on other questions will be the basis of what follows.

‘Protected individuals’: in civil proceedings

  • With what subjects should the proposals concern themselves? There seems to be no reason why parties, witnesses and all relevant others involved in all civil proceedings should not be comprised in the working group’s considerations. There is no clear logic in limiting the work to the family court only. The proposals might helpfully cover any information obtained from protected individuals and in any context, not only in relation to court proceedings (though possible court proceedings must be a criterion for triggering any rule or other legislative changes).
  • Perhaps a more appropriate title for the work of the group might be something like ‘protected individuals’. These individuals would be involved or may be involved in one way or another in civil all proceedings (including, for the avoidance of doubt, family proceedings).
  • It can be seen that the aims of the group – tentatively at some points (see para 13(xv)) – include not only children and ‘vulnerable witnesses’; but also other individuals who may be vulnerable in different ways (eg because of the form of the proceedings (eg domestic abuse or forced marriage)); or because a child welfare informant (as in eg D v National Society for the Prevention of Cruelty to Children [1978] AC 171).
  • The information which is first provided by a protected individual may not necessarily be for use in court proceedings. Every effort should be made to avoid court-based terms such as ‘evidence’, ‘witness’ etc, unless the information provided by the protected individual is specifically provided for, or to be used for, court proceedings.
  • In logic the group should please consider the special position of individuals (who may later become witnesses) who require protection in other circumstances: for example, because of their relationship with one of the parties (eg the parent or child in cases of abuse by a party[10]), because of their capacity (Mental Capacity Act 2005) or because they are child welfare informants.[11]
  • Further the full spectrum of civil proceedings, not just family proceedings, should please be kept in mind throughout: the views of a child may be as important in judicial review proceedings arising from CA 1989 Part 3 (CPR 1998 Part 54), as in connection with a contact dispute between his/her parents or an application to restrain (or permit) publicity in any form of children proceedings (see eg Torbay Borough Council v News Group Newspapers [2003] EWHC 2927, sub nom Re Roddy (A Child)(Identification: Restriction on Publication) [2004] 2 FLR 949 Munby J).

Human rights: rights in all civil courts

  • At all points any public authority – local authority children’s department, health, schools, courts, police etc – must bear in mind their duties under European Convention 1950 and that they must apply Convention principles to what they are doing.[12] In many cases there will be a balance to be drawn between respect for private life (Art 8), and the right to a fair trial (Art 6(1)).
  • This consultation may need to ask, in the case of protected witnesses, whether judges and lawyers put fair trial rights too high: eg as against the right of a protected individual to respect for family and private life (as perhaps in the case of Re A (A Child)[2012] UKSC 60).
  • Do child rights, children welfare and concerns for protected individuals justify special rights in all civil courts? This is probably a separate and wider subject; but it is a dimension of what is under consideration here.
  • Rights, and in particular European Convention 1950 rights, as a distinct aspect of the consultation does not seem to have impacted upon the working group’s discussions. Perhaps training for all involved in working with protected individuals should include a clear training component on this. Such training would include as much clarity as possible on such issues and confidentiality and publicity; rights as to giving information and not; and self-incrimination privilege (where relevant).

Rules or primary legislation

  • The working group is respectfully requested to recall that a rule cannot alter the law; and thus to reflect on the extent to which their reforms seek to amend the law that it must be within the terms of powers delegated to Family Procedure Rules Committee or that primary legislation is required.

CONTENT OF THE INFORMATION FROM PROTECTED INDIVIDUALS

Information from protected individuals

  • To what information or evidence is this consultation addressed? Use of terms such as ‘witness’ and ‘evidence’ implies it is uniquely for court proceedings; or as in support of a party to proceedings. This is misleading. The likelihood is that it will not be only for court proceedings that information is gathered in the first instance, especially where it comes from children.
  • The context in which it is ultimately used – by definition and so far as this consultation is concerned – will, of course, be court proceedings.
  • It is therefore necessary to examine (1) what forms of information are involved; (2) from whom that information will come; and (3) then to consider how that information may be employed whether this is in court proceedings or otherwise.

Forms of information

  • Information which is collected from protected individuals, or where they give evidence in court and are entitled to protection, will include:
  • Information which vulnerable individuals (including children) may wish to give to public authority representatives (local authority, schools, police etc), quite separate from court proceedings (at this stage)
  • Information and views which children who are the subject to proceedings may want to provide to the court
  • Evidence which children as parties wish to give to the court
  • Protection for ‘vulnerable’ parties (parents and children who allege abuse by a party, where that party may have a right to cross-examine them)

PROTECTED INDIVIDUALS

Protection for whom?

  • The forms of civil proceedings which might involve a protected individual in any conceivable role include:
  • Children who take their own CA 1989 Part 2 proceedings and in their own right (with permission from the court as appropriate[13])
  • Children proceedings where the child is the subject of the case (ie the case is about the child and his/her family): either because parents are seeking an order in respect of the child (Children Act 1989 Part 2 (‘child arrangements’) or Part 4 and 5 (care etc).
  • Children who are accommodated by a local authority (CA 1989 Part 3) and may be involved in eg judicial review proceedings in relation to their care
  • Children who may be called as a witness in proceedings under (1) above
  • Children who may claim financial provision from a parent (CA 1989 Sch 1 para 4)
  • Family proceedings where an adult is to be cross-examined by an (alleged abuser)[14]
  • A child or adult in any civil (including family) proceedings lacks capacity
  • A protected individual (as with X in Re J (A Child) [2014] EWCA Civ 875) is required to give evidence in any of the above proceedings and to be cross-examined or to give evidence in front of an alleged abuser.[15]
  • Rules should please be framed which comprise all civil – ie not just family – proceedings.

CONTEXT IN WHICH THEIR INFORMATION IS USED

Protected parties: in what context

  • If any changes to the law are proposed – whether of primary legislation or of procedural rules (and see paras 13(ii) and (v)[16]) – then before this can be contemplated there must be a review and, so far as possible, a definition of the primary law and the courts proceedings to which procedural changes might apply. Interim rule changes could be introduced in the interim.
  • The involvement of protected parties will span their first involvement either with a public authority; or with the courts where, as the subject of private proceedings, they may wish to – or be asked to – give their views as children of age and understanding. For this section court proceedings only are under consideration.
  • All civil proceedings should be included (though it is only in a small minority of CPR 1998 proceedings that children will be involved). There is no point in having rules only applicable in family proceedings.

Cross-over with criminal proceedings

  • Protocol and good practice model, October 2013: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings[17] provides a protocol to link between care proceedings under FPR 2010 and criminal proceedings. In A Local Authority v DG & Ors [2014] EWHC 63 (Fam), Keehan J dealt with a related matter which involved the cross-over between care and criminal proceedings by a Bovale[18] ‘gap’ practice direction.
  • It is surely lazy law-making to leave such a crucial subject to a ‘protocol’ and ‘gap’ directions. Surely it justifies clear primary legislation (where need be) with all necessary delegated legislation – ie court rules, which cover both criminal and care proceedings.

Protected individuals as witnesses

  • Where protected individuals are called as witnesses what protection can they expect from the court? This may include:
  • Special arrangements for their evidence to be given
  • Some form of clear public interest, or other immunity, for individuals who have given information which relates to child protection
  • Protection from cross-examination by an abuser or other hostile litigants in person[19]
  • In appropriate circumstances some form of closed material (or other evidence) procedure may be called for;[20] though this will require primary legislation, on the basis of Lady Hale’s comments in Re A (A Child)[2012] UKSC 60.[21] It is a substantial subject which requires further detailed consideration. It was considered eg in A Chief Constable v YK and Others [2010] EWHC 2438 (Fam) [2011] 1 FLR 1493, Sir Nicholas Wall P.
  • This subject is also considered also under child welfare informants below.

HOW IS PROTECTION TO BE ACHIEVED?

Ways in which information may be obtained and put before the court

  • This section requires consideration of how information is obtained in the first place; and, if it is required as part of court proceedings, how it is deployed in court. In particular the rights and welfare of the particular protected individual must be born in mind.
  • Further in any such consideration of a child who is a protected individual it is likely always to be necessary to balance their welfare rights against any rights to a fair trial pleaded by a party to proceedings.
  • How should the rights of protected individuals generally be balanced against the rights of other involved in court proceedings? Should their rights be the same as those of children?
  • In the case of children: if a balance is required to be struck between their rights and the Convention rights of a party to court proceedings (ie Convention ‘proportionality’), the House of Lords and Supreme Court have said that this must be conducted by measuring ‘the nature of any impact on the child’ (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 (at para [17]).
  • The interests of the child are as much a primary consideration for the LAA decision-maker as for any other agency (eg the parole board or Home Office) (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and (say) the right of a parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 the primacy of a child’s interest was explained by Lord Kerr:

[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….

[145] ….no factor must be given greater weight than the interests of the child.

Relaxing of hearsay rules

  • Hearsay rules are already relaxed by Children (Admissibility of Hearsay Evidence) Order 1993 Art 2 in relation to children proceedings.
  • Two immediate questions arise from this:
  • Does the working of this Order need review in relation to children proceedings; and
  • Should its provisions be extended to all proceedings involving protected individuals and their evidence?

Inquisitorial process for protected individuals

  • Is it desirable to have an inquisitorial process (akin to old-fashioned interrogatories) for the evidence of protected individuals; and if so how would that operate? Thus, should a party who wishes to ‘cross-examine’ a protected individual be required, for example, to submit questions through the judge who would then have the power to edit them within terms that would provide a fair trial to the questioner Balanced against the welfare or other rights of the protected individual?
  • The extent to which a judge should see a child is considered in ‘Children who want to provide information’ (below); but it must be born in mind that different rules will be required where a child is a witness of fact (and called by one or other party to give evidence); and where the judge or the parties (including the child) feel it is appropriate for the court (judge or magistrates) to see the child.

CHILDREN WHO WANT TO PROVIDE INFORMATION

Talking to the judge

  • Most of the considerations in the working group’s paper in relation to court proceedings will be in the context of contested court proceedings. In addition there will be many cases where a child ‘of age and understanding’ wishes to speak to the judge; or where the judge may want to be sure that a child’s views have been made clear to the court before a decision is made.
  • A Practice Note of April 2010 – Guidelines for judges meeting children [in] family proceedings[22] – deals with how judges may be able to permit children to feel more involved in their proceedings. The purpose of the Note is described as:

The purpose of these Guidelines is to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.

  • The Note stresses that the purpose of the meeting is not for the ‘gathering [of] evidence’ by the judge (para 5). This aspect of the guidelines, in particular, was considered by the Court of Appeal in ###.

CHILD WELFARE INFORMANTS

  • The status of members of the public, family members, neighbours and others provide information to the child protection authorities (police and social workers) is the subject of conflicting House of Lords/Supreme Court decisions. There is no question that police informants have protection. In D v NSPCC[23] the evidence of the informer was said to be covered by public interest immunity.
  • The working group may wish to consider recommendations, which might involve primary legislation, to clarify the position of and protection for those who provide information which helps to protect children. This might include statutory immunity and treatment of the informer’s evidence (eg as hearsay).
  • The conflict between the rights of the informant as seen by the House of Lords in D v NSPCC and by the Supreme Court in Re A [2012] will surely need to be resolved by primary legislation?[24]

CONFIDENTIALITY OF INFORMATION OF PROTECTED INDIVIDUALS

Confidentiality and human rights

  • The confidentiality of statements and other information of protected witnesses is, inevitably, tied in with the parallel ‘transparency’ consultation now under way at the urging of Sir James Munby P. This raises immediately the questions of whose confidentiality and in what context? It would surely be sensible to join up or co-ordinate relevant aspects of the two projects?
  • The evidence of protected individuals is inevitable bound up with their confidentiality. This in its turn raises issues in relation to European Convention 1950 Arts 6(1) and 8; and perhaps Art 10. It is not clear from its initial recommendations to what extent the working group have the special issues on confidentiality and protected individuals in mind. It is to be hoped that this will be carefully considered and that their particular rights will be balanced against any Art 6(1) arguments.

LEGAL AID AND THE PROTECTED INDIVIDUAL

  • The extent to which a party to proceedings who wishes to cross-examine a protected person is the other side of the litigants in person coin. Perhaps this can be the subject of recommendations from the working group to Ministry of Justice which would guarantee a degree of public funding where a party otherwise would act in person, and who wishes legitimately to cross-examine a protected individual.
  • This was considered in outline by the President in Q v Q [2014] EWFC 31 (on 6 August 2014), is considered by me in ‘State funding for family proceedings after Q v Q’ in Family Law News;[25] and is the subject of my forthcoming series in Family Law starting in October 2014. That series concludes in December 2014 with suggestions as to how the President’s state funding ideas might work in practice.
  • The working group may be aware that concerns at reductions in legal aid and its effect on cross-examination of protected individuals has surfaced in the broad-sheet press at least once under the headline ‘Domestic violence victims are being forced to face abusers in court ordeal, lawyers warn’[26]. This then leads on to the next subject.

LITIGANTS IN PERSON

Litigants in person dealing with protected individuals

  • How does the court protect a protected individual who is to be cross-examined by his/her alleged abuser? This is more frequent now that legal aid is increasingly less available for a parent or alleged abuser; though they are someone who is entitled to cross-examine a witness who makes allegations against them as the law now stands.
  • A question the working party will wish to address is how the rights of a protected individual should be balanced against those of an alleged abuser to a fair trial. In a slightly different context this was considered by the Supreme Court in Re A (A Child)[2012] UKSC 60. In that cases Lady Hale considered that each of the parties – the child, the father and the mother – had fair trial rights; and that each of them and X (the child welfare informant) had rights to respect for family life (Art 8). Any rights which X had in relation to not to be subjected to degrading treatment (Art 3) were discounted by the court.
  • How should the rights under Art 6 and 8 be balanced? Lady Hale replied:

[33] …. to order disclosure [of X’s evidence] in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?…

[35] The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.

[36] It does not follow, however, that X will have to give evidence in person in these proceedings.

  • The right to a fair trial for the family overrode the rights of X. This was not the same as the conclusion in D v NSPCC, and it is not the same basis for a decision as in police informant cases (see eg Marks v Beyfus (1890) 25 QBD 494; Powell & Anor v Chief Constable of North Wales Constabulary (Case No: CCRTI 1999/0904/B1) CA 1999 WL 1142622).

Role of the court in cross-examination

  • In the family court a judge – and presumably, a bench of magistrates – are formally given power to take over examination in chief or cross-examination of a witness ‘in the interests of the party’ seeking to examine. Matrimonial and Family Proceedings Act 1984 s 31G(6) provides as follows:

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

  • Sir James Munby P has considered the operation of s 31G(6) in Q v Q (No 2) [2014] EWFC 31 (see paras [69]-[79] set out below). He discusses this provision but makes no findings. Perhaps the central passage in his discussion is

[75] … does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.

  • I respectfully agree; but I do urge the working group to recommend the necessary primary legislation which will protect – in all civil proceedings – the victim from being examined/cross-examined by the perpetrator.
  • The next step will be to consider whether this is to be by the court, or by a ## to the court; and if the latter at whose expense? By what criteria will the judge need to consider appointment?

EUROPEAN CONVENTION 1950 – A HUMAN RIGHTS ACT 1998 BALANCE

Effects of European Convention 1950 on reforms

  • A number of the reforms contemplated by the recommendations and the discussion above inevitably involve Convention considerations. In Re X the requirement of a fair trial could be seen working against the interests of an informer. The working group will need to consider whether this strikes the right balance in respect of protected individuals. Can the ‘primacy’ (per Lord Kerr above) of their interests be said to come above the rights of parties to proceedings to a fair trial?
  • Where a vulnerable individual may be at a disadvantage against one without disabilities, they have a right to a fair trial. Convention jurisprudence is that they must not to be put at a disadvantage in relation to an opponent. And this, it might be said, takes the discussion back to legal aid and what this can do effectively to help protected individuals.

[1] http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/: response by 3 October 2014

[2] ie broadly within the terms of the Cabinet office guidance on consultation documents of 5 November 2013 https://www.gov.uk/government/publications/consultation-principles-guidance

[3] The term used by family lawyers to connote care proceedings; though in this note other areas of ‘public’ or administrative law will require to be considered (eg Children Act 1989 Part 3)

[4] A rule cannot be other than ‘mandatory’?

[5] This proposal is not explained. Part 4, at present, covers the full spectrum of case management in family proceedings

[6] But not, be it noted, with FPRC or any practitioner groups such as Resolution or FLBA, whose practitioner input could prove invaluable; though FPRC, it seems, are expected to rubber-stamp ‘the rule’ change at a meeting ‘at the end of October 2014’ (para 14)

[7] It would be interesting to know what constitutional status the WG accords to the Family Justice Council

[8] And lay justices?

[9] What is a ‘tool-kit’ in the context of practice or training, and where does it derive from in this context?

[10] H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J, Q v Q (No 2) [2014] EWFC 31, Sir James Munby P

[11] As with X in Re A (A Child) [2012] UKSC 60 and Re J (A Child) [2014] EWCA Civ 875; but see also D v National Society for the Prevention of Cruelty to Children [1978] AC 171, (1977) FLR Rep 181 considered at ** below

[12] Human Rights Act 1998 s 6

[13] FPR 2010 Part 16

[14] See also MFPA 1984 38G(6) and ** below

[15] This may raise additional questions about whether there should be any special protection, guaranteed by law, for child welfare informants: see ** below

[16] One ‘mandatory rule change’ seems to be envisaged. As will be seen this is hopelessly inadequate even on the limited reform canvass proposed by the working group

[17] Set out eg in Family Court Practice 2014 at p 2977

[18] Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171

[19] See eg comments by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 and of Munby P in Q v Q (No2)

[20] See separate notes; though such a procedure was considered and its uses doubted by Lady Hale in the Supreme Court in Re A (see nn below)

[21] [34] It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34[2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28[2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a “gist” of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case.

[22] [2010] 2 FLR 1872, Family Court Practice 2014 p 2933; http://www.fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf

[23] D v National Society for the Prevention of Cruelty to Children [1978] AC 171

[24] This subject is considered by me in full in Family Law [2014] February at ‘Disclosure, Privilege and public interest immunity: Public interest immunity’

[25] http://www.familylaw.co.uk/news_and_comment/state-funding-for-family-proceedings-after-q-v-q-private-law-public-funding-part-1#.VDFO5vmSz7w

[26] eg report in Independent of 5 October 2014 http://www.independent.co.uk/news/uk/crime/victims-of-domestic-violence-forced-to-face-abusers-in-court-ordeal-9774958.html

A BRIEF HISTORY OF FAMILY LAW

Divorce and marital property reform

Three dates are especially significant in a brief history of family law: 30 July 1949 when Legal Aid Act 1949 came into operation; 1 January 1971, the date of the start of Divorce Reform Act 1969 and Matrimonial Proceedings and Property Act 1970 (which together were consolidated later into Matrimonial Causes Act 1973);[1] and 14 October 1991 the date when Children Act 1989 started its work. The first saw a real possibility for many people to be represented in family proceedings. This might be said to have led directly to the success of the second two statutes: a new regime for divorce (including by consent and by effluxion of time,[2] though fault remained as well); and a regime for financial adjustment which included redistribution of family capital and spousal periodical payments (pension adjustment had to wait 30 years statutorily to follow).

The framework of Matrimonial Causes Act 1973 has remained in place since 1971; and, despite the passage of forty years (and an ineffective attempt at reform in the mid-nineties[3]), divorce and distribution of finance following marriage breakdown has remained subject to much the same substantive law ever since. A fault-based divorce scheme has become, inevitably, little more than an administrative exercise, and distribution of family finance is still lead by a scheme which vests substantial discretion as to disposal of family finance to individual judges and district judges. Save where children are concerned, unmarried couples are unaffected by all this.

Children Act 1989 has had its conspicuous successes; but it is now becoming frayed at the edges. It has been extensively amended. It remains separate from adoption law, which is its natural accompaniment. Its working needs full review, perhaps alongside an effective child sex abuse inquiry. And then it needs full amendment and codification as a new single statute.

Finer Report

Whilst the divorce reform legislation was making its way onto the statute-book, Barbara Castle commissioned a report in 1967 on the subject of single-parent families (their benefits, housing and legal proceedings needs). It was not until another Labour social security minister was in power that the report was published (July 1974) as the Report of the Committee on One-Parent Families July 1974 Cmnd 5629 under Sir Morris Finer (the ‘Finer Report’).

It is to the shame of successive governments, Lord Chancellors and now Ministries of Justice that the report has largely languished on a civil servant’s shelf; and that, even though a single family court – one of the more specific reforms proposed by the Report – is also recommended by the Family Justice Review[4] (see below), it has only been achieved, to a very modest degree, in April 2014.

A unified family court would be one of the more obvious means of achieving economy and good case management in family proceedings; yet its obvious sense still evades the Ministry of Justice. The introduction of Family Procedure Rules 2010 and the ‘single’ family court by amendment of Matrimonial and Family Proceedings Act 1984, does not achieve unification. The Family Division is still separate from the rest of the family court and child support is dealt with mostly in administrative tribunals (First-tier Tribunal and Upper Tribunal). Administrative law for children and child support must be dealt with in Queen’s Bench Division and the Court of Protection is rapidly developing its own separate jurisdiction over protected individuals.

Conciliation and mediation

One of the recommendations of the Finer Report was that there should be conciliation services set up to deal with the established consequences of marriage breakdown.[5] This recommendation bore fruit in Bristol where a conciliation scheme opened its doors in 1977. Schemes began to develop in a faltering way after that. These have developed since; but only on an ad hoc basis; and, insofar as they are regulated at all, this is more or less voluntary. The schemes have still not had the formal court or government support which both Finer and the Bristol scheme trustees had expected. The first clause in the government’s draft bill (see below) is no more than a relatively feeble attempt to extend the existing MIAMs appointment.

A mediation movement has developed steadily if slowly; but there is evidence that its role is still misunderstood by many members of the divorcing public.

Solicitors Family Law Association

The call for a more conciliatory approach to marriage breakdown which came from Bristol in the later 1970s had its echo in London in 1981 with the setting up, by a group of solicitors, of the Solicitors Family Law Association[6] (‘SFLA’, now Resolution). The main aim of the group was to develop a code for solicitors practising family law which encouraged those who signed up to adhere to a conciliatory code of practice. The Association aimed to get away from the essentially litigious approach which was the practice of many family lawyers and which was largely encouraged by the rules.

Solicitors from all over the country quickly embraced the code and the Association (now re-named) has now developed a campaigning side to its activities and has the respect of judges and (to a degree) of government.

Clean-break

In Minton v Minton[7] the House of Lords reflected the mood of the times which was to encourage parties, where means permitted, to achieve a ‘clean break; and the case confirmed that Matrimonial Causes Act 1973 gave the court power to do this. Lord Scarman, with whom the Lords unanimously agreed, explained the position as follows:[8]

There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other – of equal importance – is the principle of ‘the clean break’. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make, as between the spouses, a genuinely final order unless it was prepared to dismiss the application.

In 1984 Parliament took the matter a little further by including in its amendments to the 1973 Act[9] a series of ‘clean-break’ provisions including that upon making financial provision as between the spouses the court should have a ‘duty… to consider whether it would be appropriate’ to impose a clean-break on the parties.[10]

Children Act

As the Law Commission, under the guidance of Brenda Hoggett,[11] was considering children law reform the House of Lords delivered its speeches in Gillick v West Norfolk and Wisbech AHA.[12] Two years later Butler-Sloss J was considering the problems arising from alleged sex abuse in Cleveland. In Gillick Lord Scarman considered the extent to which the wishes of a child could override those of her parents (here in the context of obtaining contraceptive advice) and expressed the following view:[13]

Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law’s development, and stamp upon the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change…. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them…. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.

The reasoning in Gillick and the 1988 Report of the inquiry into child abuse in Cleveland 1987[14] reflected a number of the views current amongst children law reformers at the time; and these views, combined with the Law Commission proposals, to provide the fertile soil in which Children Act 1989 could grow.

 

A new approach to care proceedings in particular was provided for in Children Act 1989 Part 4. The aim was to place responsibility for children with local authorities and to reduce the control of the courts (hitherto provided for in various statutes and wardship). The statutory and only basis for taking a child into the care of a local authority was that s/he had suffered ‘significant harm’[15] and needed intervention from a public authority.

Flexibility and formulae

Discretion: ancillary relief under Matrimonial Causes Act 1973

As mentioned by Lord Scarman (in Gillick above), a system of family law requires flexibility. This was explained by Ormrod LJ,[16] for example, in Martin (BH) v Martin (D):[17]

I appreciate… that it is difficult for practitioners to advise clients in these cases because the rules are not very firm. That is inevitable when the courts are working out the exercise of the wide powers given by a statute like the Matrimonial Causes Act 1973. It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the 1973 Act, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion.

Matrimonial Causes Act 1973 s 25(1) and (2) gives the courts wide discretion to dispose of assets as the judge – normally a district judge – thinks fit; and Ormrod LJ was one of the leading judges to explain and develop the new jurisdiction of the family courts

Child Support Act 1991

By contrast, one of the more absurd chapters in twentieth century family law is represented by the child support scheme. Many of the absurdities of the scheme linger still. Its main aim was to eliminate discretion and to provide a scheme for defining and enforcing child support maintenance by mathematical formulae. It has undergone five major reforms (1995, 1998, 2000-2003, 2008 and late 2012); yet it remains astonishingly expensive and ineffective. Substantial amounts of money are unenforced; and its staff still have little concept that most non-resident parents are willing to pay for their children (not always as much as – but sometimes more than – the administrative scheme requires).

White v White

By contrast, in a relatively understated way, Lord Nicholls the House of Lords provided pervasive guidance on dealing with financial provision, with the suggestion that, as a yard-stick, judges should consider apportioning capital as between parties on an equal basis (‘the sharing principle’).[18] This created a shift – perhaps a needed shift – from the previous needs-based principle; and lead to later decisions drawing attention to how also financial compensation for a wife might work (Miller/McFarlane[19]). A problem with these decisions is that they move practice away from the financial world which most people inhabit (Minton (above) and Piglowska v Piglowski[20] dealt with couples of modest means) to rarefied financial circumstances enjoyed by only very few couples.

Domestic violence and divorce reform

One of the stranger episodes of the past forty years has been the passage of the Family Law Act 1996 and its final disappearance (as to Parts 1 to 3). It was an attempt by Lord McKay – well-meaning no doubt, but mostly intensely impractical – to reform divorce law. The administrative structure could never be set up, let alone the political developed will to put Lord McKay’s good intentions into practice.

Family Law Act 1996 Part 4 survives as a more or less uncontroversial framework for a law to regulate the basis on which injunctions can be granted both to restrain violence and to exclude ill-behaving cohabitants (whether married or not) from their former joint homes. This Act operates alongside the little used Protection from Harassment Act 1996 which, in the same statute, makes both a tort and a crime of harassment. Family Law Act 1996 Part 4A has added forced marriage protection to the armoury of family law; and, controversially, there are now proposals to extend the arm of the criminal law to forced marriage as well.

Case management reforms and the Woolf reforms

The 1990s saw family lawyers promoting case management reform[21] (when family proceedings were still covered by the old civil proceedings rules[22]). They failed to follow up this development (save to the limited extent set out in the 1996 Ancillary Relief Pilot Scheme); and then found themselves watching from the side-lines as Lord Woolf and his civil procedure rules committee carried out a major overhaul of the civil justice system (from which family proceedings were pointedly excluded[23]). Family proceedings finally got their imitation Civil Procedure Rules 1998 in April 2011 when Family Procedure Rules 2010 came into operation.

Case management was a buzz-word in CPR 1998; but in truth neither those rules nor FPR 2010 have got to grips with the real needs of case management in a civil justice system (family proceedings, by any proper definition of the term, are civil proceedings): clear definition of issues and control of evidence to deal with those issues; timetabling of cases both as to how they will proceed to trial, and how they will be dealt with at trial (how long will each witness take, how long for submissions etc). The real challenge for any reform following the Family Justice Review will be to achieve clear and effective case management goals.

Any such goals will be undercut by reductions in legal aid[24] as judges struggle to cope in the face of a loss of help which they have been able to rely on practitioners to provide.[25]

Legal aid scheme: flight from justice

The high point of the legal aid schemes since 1949 was probably in 1973 when financial eligibility was extended (increasing the number of people who could benefit from representation) and the ‘green form scheme’ introduced. 1988 saw the beginnings of government retrenchment and a deliberate move from the provision which had enabled most practitioners to regard legal aid income as broadly similar to, and often more secure than, income from private work. Since then each decade has seen the scheme become more complex in inverse proportion to its availability to clients and its fairness to legal aid practitioners. Any attempt to keep rates of pay anywhere near to private rates has spiralled downwards since 1988.

The downward spiral in extent and availability of the scheme accelerated with the euphemistically[26] named Access to Justice Act 1999 – which for various reasons, including legal aid availability, did very little for ‘access’ to justice. Availability of legal aid and the effectiveness of the scheme will deteriorate still further when the recent Legal Aid and Sentencing of Offenders Act 2012 comes into effect.

Cohabitation law and civil partnership

Since the coming into effect of Children Act 1989, and to an extent before that, all law relating to the children of unmarried parents has been exactly the same whether that child’s parents are married or not; and the same is the case with the child support scheme.

When it comes to distribution of property the law has so far been unable to come up with a formula which equates property held by unmarried couples with married couples; and so the forms of property law which applies to couples remains radically different according to whether they are married or not. This unquestionably represents a serious blot on the English family law reform landscape, and a challenge for reformers in the immediate future.

[1] A history of these two subjects is provided for respectively in: *** (Sweet and Maxwell, ) by EH Matthews and Derek Oulton which outlines the early history of legal aid from medieval times to the then modern day (1970); and *** (Oxford, 2005) by Stephen Cretney which explains the detail of modern family law in the period 1850 to modern times. An earlier and idiosyncratic history is provided by *** Lawrence Stone ().

[2] Now Matrimonial Causes Act 1973 s 1(2)(d) (two years living apart and the respondent consents to divorce) and 1(2)(e) (that the parties have lived apart for five years)

[3] Family Law Act 1996.

[4] The proposal was accepted by the government but is still not included in its draft bill published in September 2012.

[5] Paras 4.85-4.90

[6] A superficially similar group has been set up by the bar (the Family Law Bar Association: ‘FLBA’); but this is merely a group within the bar and does not have a separate code.

[7] [1979] AC 593, [1979] 2 WLR 31, (1978) FLR Rep 461

[8] At (1978) FLRep 471

[9] By Matrimonial and Family Proceedings Act 1984

[10] Now in Matrimonial Causes Act 1973 s 25A(1)

[11] Now Baroness Hale of Richmond

[12] [1986] 1 AC 112, [1986] 1 FLR 224

[13] At 250-251 and 253

[14] Cm 412 London: Her Majesty’s Stationery Office

[15] Children Act 1989 s 31(2)

[16] Sir Roger Ormrod sat as a Lord Justice of Appeal from 1974 to 1982.

[17] [1978] Fam 12, [1977] 3 WLR 101, (1977) FLR Rep 444 at 449

[18] White v White [2000] 1 AC 596, [2000] 2 FLR 981

[19] Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 1 FLR 1186

[20] [1999] 1 WLR 1360, [1999] 2 FLR 763, HL

[21] 1995 Practice Directions

[22] Rules of the Supreme Court 1965; County Court Rules 1981 – for an example of Rules of the Supreme Court 1965 Order 24 (interrogatories) in practice see eg Hildebrand v Hildebrand [1992] 1 FLR 244, Waite LJ

[23] Civil Procedure Rules 1998 r 2.1(2) specifically provides that they ‘do not apply’ to family proceedings

[24] Legal Aid Sentencing and Punishment of Offenders Act 2012 Part 1

[25] At the end of September 2012 the Lord Chief Justice could be heard lamenting the increasing number of litigants in person and its effects on court administration.

[26] Euphemistic, in this context, may even be a euphemism for dishonest: the Act deliberately reduced ‘access’ to justice. The honest name for it would have been the Flight from Justice Act.

#CSAINQUIRY: WHAT THE INQUIRY MUST CONSIDER

An agenda for child law reform

So what would I want to see from a child sex abuse inquiry? For me such an inquiry is an opportunity to review the working of child law and of institutions – local authorities, police, health departments, courts and parole boards – operating in the area of child safe-guarding and protection. Children Act 1989 came into operation in October 1991, over twenty-three years ago. By the time a fully effective inquiry has completed its work, the Act may have passed its twenty-fifth year in operation. That is surely high time in such a fast moving area of law to review what the Act has achieved, and to review extensively where it needs to go now.

That is not to encourage delay. There is no reason why the inquiry should not proceed in two stages: first, consideration of what has gone wrong in the past, and to report thereon. Then a second phase: to proceed from the findings to put forward careful and fully considered recommendations.

But first, of me, a disclaimer: I am not an administrator, nor a child protection expert. I am merely a lawyer and advocate who has worked at times in the area of child law, and who taught the Children Act 1989 extensively as it was being introduced. My opinions are formed according to those limitations. My perspective is mostly from that of someone who works in the family courts, and that will show in what follows.

Children Act 1989

A short history of child law over the past 30 years starts with Gillick. As the Law Commission, under the guidance of the then Brenda Hoggett,[1] was considering children law reform, the House of Lords delivered its speeches in Gillick v West Norfolk and Wisbech AHA.[2] Two years later Butler-Sloss J was considering the problems arising from alleged sex abuse in Cleveland.

In Gillick Lord Scarman considered the extent to which the wishes of a child could, in law, override those of her parents (here in the context of obtaining contraceptive advice). He set out his views and included the following:[3]

Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law’s development, and stamp upon the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change….

The reasoning in Gillick and the 1988 Report of the inquiry into child abuse in Cleveland 1987[4] reflected a number of the views then current amongst children law reformers. These views, combined with the Law Commission proposals, catalysed to provide the fertile law reform soil in which grew the Children Act 1989. It was a good time to be involved in family law reform.

 

Care proceedings and ‘family justice’ procedure

 

A new approach to care proceedings in particular was proposed by Children Act 1989 Part 4. The aim was to place responsibility for care proceedings for children with local authorities, and to reduce the control of the courts (hitherto operated under a miscellany of statutory provisions and in wardship). In principle the care provisions – ‘significant harm’[5] being the criterion for a care order – simplified the law. Court procedure has not moved in step with this simplification. It is the job of lawyers to protect their clients, and ensure the best result for the individual. It is the job of judges to see fairness and ‘equality of arms’.[6] Fairness to parent and speed of disposal for a child do not always walk hand-in-hand. Children and Families Act 2014 s ## considered this; but in an arbitrary and ineffective way. The whole process of child law – welfare reporting, expert evidence, social work presentation of cases – needs urgent review and can be a component of this inquiry.

 

To the credit of successive governments since 1990 (including the present administration under Legal Aid Sentencing and Punishment of Offenders Act 2012), legal aid for all the main parties involved in first instance child care proceedings has remained the same. A child in care proceedings (regardless of age) will always be represented; and parents have legal aid, regardless of their means or the merit of their case (unheard of in any other area of law).

 

Child law review

 

Anyone who practices in the area of child protection and child law will have their own list for proposed reforms. Working within the ambit of a child sex abuse inquiry, mine would include the following:

 

Safeguarding

 

In the homes of children where abuse occurs – a parent, a step-father, an older brother etc: children need to know where they can turn for help. The same applies to institutions of all sorts: schools (private and state-run), foster homes, hospitals, police, the courts. Others will be better qualified than me to define and categorise the work which needs to be done here; but detailed work – including with the next section – needs to be done. A child sex abuse inquiry must make recommendations.

 

Response

 

One of the main consequences of the Cleveland inquiry was to stress the individuality of children. It was also, for present purposes, to lament the failures of individual public bodies – local authorities, schools, police etc – in their response. Working together – now in its 2013 edition[7] – was part of the response. Plainly this is an area which is critical to the inquiry’s recommendations.

 

Court proceedings

 

Where a child who is living at home has been abused[8] it is often the case that there will be parallel criminal and care proceedings: the criminal proceedings to decide the guilt of the parent (or other) who is said to have abused the child; and, sometimes, in care proceedings to consider whether the child or children have suffered ‘significant harm’ (within the terms of Children Act 1989 Part 4[9]) and to decide whether the court should make a care or supervision order in respect of the child.

 

Different state authorities – CPS and local authority children departments – are involved in each set of proceedings. Different courts – Crown Court and family courts – and different court rules and procedures are involved. And yet the more important parts of the same factual evidence is in issue; the same standard of proof is often required; and the same findings will be made against the abuser. One trial is before a jury, the other before a family court judge (who could be the same or same level of judge in both separate courts). The tension between the two court systems is regulated by no clear law or procedural rules; but only – thus far – a form of guidance: Protocol and good practice model, October 2013: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.[10]

 

Subject to that, or perhaps with that also in mind, is there any way that the two disparate sets of proceedings can be combined, in those cases where guilt of an abuser is in issue alongside Part 4 proceedings? This would also reduce the tensions considered in the next section: as to how a child’s evidence is put before the court where there is only a limited liaison between the criminal and civil jurisdictions of the courts, what are the formal procedures involved and what judge should conduct the respective trials?

 

Role of the child in such proceedings

 

Incredibly in 2014/5 the family courts still lag behind the criminal courts in the way evidence from children is received. Such is the problem that, at the time of writing of this note, a ‘working group’ from within the family courts system is considering the issues. Their title is Children and Vulnerable Witness Working Group.[11] The intent of this group is limited. If it is to do its job properly it must expand its brief considerably. That is a separate point.

From the point of view of a child sex abuse inquiry this is area of work where it must be expected to make extensive recommendation. Joined up thinking is required between Ministry of Justice and the Home Office, since a child who has been abused and their evidence is central to what the working group are doing. (My more detailed recommendations and submissions to the working group can be found at ##.)

 

Support for abused children in their families

 

Others will be better qualified than I am to look at support for children who have suffered abuse; for their families; and – where needed – for survivors long-term. This must be on the agenda for recommendations by a child sex abuse inquiry.

 

Criminal injuries compensation for children

 

A child sexual abuse inquiry must consider the workings of the CICB and whether – as it now operates – it is fair to children; and whether its procedures are effective for the children and others concerned.

 

Treatment and release from prison (if ever) of offenders

 

A child sexual abuse inquiry must consider the workings of parole boards where they are concerned with abusers whose survivors, and their families, will still be alive (and perhaps under threat) where the boards considers convicted abusers for parole. Thus, for example, should the survivor – as the abused person – have an absolute right to the final word on any abuser’s parole board application; and to be entitled to legal representation with legal aid for such final word? This area and how society deals with abusers when they are to be considered for release from prison – both for the sake of their victims and families, and for any future possible victims – requires urgent and very careful consideration.

 

David Burrows

26 October 2014

 

 

[1] Now Baroness Hale of Richmond SCJ

[2] [1986] 1 AC 112, [1986] 1 FLR 224

[3] At 250-251 and 253

[4] Cm 412 London: Her Majesty’s Stationery Office

[5] Children Act 1989 s 31(2)

[6] Reflected now in the family proceedings overriding objective in Family Procedure Rules 2010 r 1.1

[7] Working Together to Safeguard Children (March 2013)

[8] For this note, I’ll skip the conventional ‘allegedly’: I am not dealing directly with guilt or not here

[9] I avoid the terms ‘care proceedings’ (since the result may also be a supervision order or an order under Children Act 1989 Part 2) and ‘public law’ which is very confusing (especially for a lay reader, even for any lawyer who is not familiar with family proceedings) since for most people ‘public law’ means administrative law conducted in the Administrative Court

[10] Set out eg in Family Court Practice 2014 at p 2977

[11] Their interim report is at http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/

#CSAINQUIRY: FIONA WOOLF: PLEASE RESIGN – draft letter

No shame in standing down

We write to suggest that it is time for you to review your position as chair of the child sex abuse inquiry and to resign. There is no shame in that. It sounds, from your session with the Home Affairs Select Committee, as though the first approach from the Home Secretary was brief. Now you know more about the job and have considered it in the light of your other commitments and your expertise (and that you may be nearly 70 when it is finished), you can honestly say you know you are not the appropriate person for the role.

Upon your resignation we urge you to recommend the following to the Home Secretary: first, that she appoints a specialist family law High Court (or higher) judge to take your place; secondly, that this inquiry is now set up formally under Inquiries Act 2005; and, thirdly, that in so doing the Home Secretary recognises (as we shall explain) that the panel she has appointed may be experts as witnesses or assessors.

We think your links with people such as Lord and Lady Brittan made your position untenable from the start; but we do not wish to deal on that here. We focus on your expertise.

Review of children law for the 21st century

The recommendations from this inquiry provide an opportunity to focus on the working of Children Act 1989 (especially Part 3) and Children Act 2004 Part 4; and to review their working in a truly radical way. It sounds as though you may not even have read these statutory provisions, still less that you are familiar with them. It goes much further than Acts of Parliament. There is a forest of guidance (eg that issued recently by the police, President of the Family Division etc), delegated legislation, relevant case law and so on. You need a close familiarity with, for example, the inter-agency operation in individual areas and Working Together to Safeguard Children (March 2013); and with the inter-agency relationships, and their inter-action with criminal and family courts.

You do not have this. It would be professionally disingenuous, we believe, to suggest you do have the expertise. You are, after all, presented by the Home Secretary as a lawyer; but from a very different field. In European countries you would be a notary; whereas the role required is of an advocate which is the back-ground from which judges come. Perhaps you could explain this to the Home Secretary and that sitting occasionally as a magistrate – ie a lay-person – only re-enforces the point.

Confidence of survivors

Survivors need someone in whom they have confidence. You did not assist yourself by calling them ‘victims’ and by asserting that you are not part of the ‘establishment’. You cannot represent the survivors. Indeed as a chair of an inquiry you should represent no one. That is a serious misunderstanding of your role. A judge represents no-one but the law s/he upholds.  Tribunal chair is in the same adjudicative position.

Finally, and in fairness to you, you are a lawyer. We therefore ask you to draw to the Home Secretary’s attention the very real difference between the inquiry chair, whose job is judicial and inquisitorial; and that of the specialists, independent expert witnesses, and lay witnesses – survivors, politicians, police, social workers and many others in authority – on whom the inquiry must call and from whom it must hear evidence. The present panel is composed of a confusing mixture of individuals who are not there in a judicial capacity. At most two or three could be with the chair as assessors; but a judge as chair can decide that later. A wide panel only divides, and thus confuses its rule – surely?

Please resign now: you will be respected for it. If you continue you will seriously lame the inquiry from its start.