CLARITY: THE VULNERABLE AND LEGAL AID LAW

Family courts: the vulnerable and the legal aid swamp

Two things have struck me over the past few months, as I write about legal aid and those who are – and mostly are not – entitled to it: first that the very lack of clarity of the legislation which comprises the 2013 scheme[1] denies a right to a fair trial; and that the people it should protect – the vulnerable witness; the victim of domestic violence; the parent who struggles with English; and the forgotten many who struggle with basic literacy as adults – are frequently overlooked.

Clarity

If clarity be the food of law; play on

Give me excess of it, that, with such clarity,

The appetite for obfuscation shall thus die….

with apologies to William Shakespeare (Tempest 1:1 l1)

I have written before of the need for clarity in law (see eg https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/). The weight of statutory provision which confronts the applicant – who must in theory understand it to pass the threshold of court application – is truly astonishing. I say ‘astonishing’ without exaggeration. I read the new Act (the bits I needed to) and all the delegated legislation as it came out. Most was new to me; but some – especially the ‘merits criteria’ and means testing rules – were much the same as before.

But remember: I was broadly familiar with some of the detail already; I have 40 years behind me as a lawyer; and have studied legal aid law in a more or less academic way for 25 of those years. I am literally in another legal class from the vast majority of readers; especially the domestic violence victims and vulnerable people we’ll be looking at shortly. And yet at times I struggled: finding how merits fitted with legal help (or did not); where domestic violence was defined; and whether certain types of work would attract civil legal services – all were things which were not worked out easily.

If clarity is food for the legal aid legislation draftsman (to return to my mangling of the Tempest above) – as by definition it should be – then I fear he is not well-fed. Does not his appetite still live nourished in the swamps of 2012/3 delegated legislation? The tangled roots legal aid legislation are eloquent of the opposite of clarity (as the unspoken sub-text of the cases below well show). So, my friends, here is primary legislation; there, thicker and more verdant, schedules to that legislation. Next is the forest of regulations (essential to define merit of a case and means of an applicant) and growths of Lord Chancellor’s Guidance to case workers. All is obfusc on the draftspersons vigorous mill.

Obfusc and a fair trial: a ground for judicial review?

I mention this now, since it seemed to me, as I read the recent legal aid cases of Gudanaviciene[2] and RofW,[3]that one of the most glaring grounds for judicial review – which many lawyers might not think of, instinctively – was that a fair trial was denied because of the simple fact that an applicant couldn’t get to court at all. He or she could not tell easily whether there was a possibility of receiving legal aid. This was the first step to take before even a lawyer would help to issue process. Without that first step: no claim. It is like denying medical treatment (eg for cancer) to anyone whose lungs, breasts or prostate (say) – on the outside – look OK. It takes a cancer specialist to read what is going on under the skin.

Not only must the battered spouse or partner cope with the violence which creates the need for help. The list of what must be penetrated in legal terms to define legal aid borders on the Kafkaesque: First is the variety of schedule and regulations considered by RofW (see below). Next is the law which defines means (eg Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) and the merit of her case (eg Civil Legal Aid (Merits Criteria) Regulations 2013) – the content of which is far more intimidating than the titles of these regulations (not considered in RofW, which is a mystery). In logic the legislator should assume that all this must be considered before a victim can consult a lawyer (just as I must believe I have a medical complain before I go to a doctor). Rank complexity – or basic lack of clarity – should surely be a ground for declaring legislation like this unlawful?

And if all this fails – and when you, dear applicant, have understood it all – you can check out whether you have a chance of a exceptional case determination; and that is another substantial arena where the fog of law unclarity needs simplification (see Gudanaviciene (above)). For that you’ll need an understanding of human rights jurisprudence which is probably beyond the knowledge of most practising family lawyers; an understanding of why the procedure is so complex in your particular case; and then it’s easy… Seriously, it’s a substantial area, to which I shall retun.

The vulnerable, victims, and allegations of abuse

And, finally, back to victims of domestic violence, children as witnesses alleging abuse, and the variety of people – witnesses, parties etc – who together in a civilised society in a family breakdown system[4] merit protection in and around the court process. The Courts and Tribunals Judiciary (see below) speak of them collectively as ‘vulnerable witnesses’ and children. Where do they fit in the legal aid palimpsest?

Summer’s blaze of family court ‘consultations’ included, amongst three consultation exercises, that of the Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ (Courts and Tribunals Judiciary: 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/ ). An aim of this group was to propose ‘a new mandatory (sic) rule… supplemented by practice directions (PD) and guidance approved by the President’). My response was submitted on 5 October 2014 (https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ).

One rule (whenever is a rule not ‘mandatory’?) is plainly inadequate. So too is the speed at which the group is working. (At least it should have told us by now that its canvas must be much wider than its ‘interim report’ suggested.) Re K and H[5] shows how important is but one aspect of this substantial subject: of how to protect children as vulnerable witnesses. Parties will be victims of domestic violence, and thus often vulnerable. Others, such as Ms Gudanaviciene, the non-English speaking proposed deportee and mother of a small child (her lack even of English to wade through our law justified an EDC said the Court of Appeal) need protection. The ‘vulnerable witness’ aspect is but one which links the strands of this, still further, aspect of unmet legal need.

Let us assume there really is no mare cash (well not much, save for a broader brush approach to ECD) in the Ministry of Justice legal aid budget, much can still be done to improve the family law system. Clarity of law (once done that should save money: takes less time to read, to understand and to explain to a judge) is one thing. The other is to provide a more rational system – case management, funding and attendance in court – for those who the family court system must protect.

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

[2] R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (Lord Chancellors Guidance to case workers partially unlawful, and ECD under LASPOA s 10(3) and its meaning explained).

[3] R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin) (limitations on grant of domestic violence legal aid intra vires the regulation-making powers of the Lord Chancellor); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/domestic-violence-restrictions-on-grant-of-legal-aid#.VM0NS2jF81Y

[4] I avoid ‘family justice’ as that term has been hijacked by children lawyers

[5] Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge (HMCTS to fund an advocate to cross-examine for the court and an unrepresented father, a child who alleged he had abused her); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/family-court-funding-2015#livefyre-comments

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Woman in a white dress

Dusty, black-and-white photos lay in a shoe box;

And the last: a white dress and a smiling woman

Who looked down, from slightly above me

As I stood watching her, on her grassed hill-side.

A woman in a white dress:

Away and behind her –

A back-drop to the white dress drifted foreground

The early Summer hill-side sloped

Grass, shale (perhaps) and chalk, to the sea.

The sea was the frame and mood.

Black it was in the photo;

But I imagined a deep, deep blue –

Behind and below her;

And framing her so white dress.

Flints were sparsely strewn at her feet,

Sand dusted the grass which climbed a little behind her;

She stood still,

A smiling sentinel on her grassy knoll;

A Monet in black-and-white (without the parasol);

Breeze against a curved body

The cloth a drift;

And only the wind providing its slight movement.

The smile again

Eyes shaded – dark glasses against the sun.

No shade could hide that smile.

The monochrome, white and dark

Gave an age to the photo;

But the mood

Was of a clear bright day:

Summer spun greens of the hill-side;

Whites: her dress, the chalk and flint,

Flecks on the sea below;

The intense blue of the sea;

And at your feet: the sandy soft, and richer greens, of the grass.

Your smile, as you looked down at me,

As I stood watching you on your grassed hill-side above the sea,

Spoke to a memory.

And you: a photo in a box.

A FAMILY LAW REFORM MANIFESTO

A hundred days till the election

With a hundred days to go to an election, my top ten list for law reform (mostly family) would be as follows:

1 Clarification of law – all primary law, procedural rules and other delegated legislation (regulations, guidance and the like) must be written in language which is understandable by the averagely intelligent lay-person (with a dictionary). The procedures it describes must be logical and follow common law rules. Children law procedure in one part of Family Procedure Rules 2010 (Part 12) with 16 practice directions is an insult to all of us; and an unjustified assault on the many lay people who wrestle with litigation over their children. Legal aid and its regulations add another dire dimension of opacity of the so-called rule of English law.

2 Mediation first – the mediation process should be clearly separated from the litigation process. In the public mind the point of entry into the family breakdown system should be mediation first. It would follow from that, that solicitors’ organisations (eg Law Society, Resolution) should look very carefully at the extent to which they can fairly, and without conflict, represent both mediators and litigators.

3 Cohabitation law – must be brought into line (as it has been for most children proceedings: welfare and money) with other law on family breakdown (eg in relations to parties’ finances and rights to their home).

4 Legal aid – in the modern austerity climate a wholesale return to pre-1999 family law legal aid is impossible; but circumstances where the tax-payer can be banker (via the statutory charge must be investigated); domestic and other abuse must guarantee legal aid (graded domestic violence: how sick is that?); other forms of funding – without too much complexity (relative ‘clarity’ per 2 above) must be found.

5 Case management – effective case management is the obvious ‘something must be done’ of Munby J’s plea; but now he is in a position to do ‘something’ he ignores the point. The judiciary has the remedy in its own hands; but it must take hold of it:

• Since case management has been around since at least 1999, it seems judges in family proceedings need training
• Issues must be identified at the outset, and the evidence relevant to these issues kept under control
• Issues which need a preliminary decision – sometimes so obvious – must be identified and disposed of

6 Parallel case management and mediation – case management must go hand-in-hand with mediation; on a parallel (ie parallel lines never meet, save in infinity) basis. There will be symbiosis between mediation and case managed litigation: sometime the mediator will control this; sometimes the court. The point is that the court process – and therefore the marriage breakdown lawyers – does not control agreement or disposal on breakdown. In-court family dispute resolution, if conducted by the court, must be done by trained judges; not on the hit-and-miss basis at present.

7 No fault divorce – divorce is an administrative process, not part of the court/litigation process; and this should be recognised, given effect to and – whilst on the subject – it should be made non-fault.

8 Protected individuals – or ‘vulnerable witnesses’, must be taken very seriously. It cannot be just one rule change, as now suggested by the witness working group. My response to the 31 July Interim Report of the working group is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/; and I urge my recommendations there as part of this manifesto.

9 Children law – the child sex abuse inquiry which is proceedings so falteringly can produce ideas (see eg https://dbfamilylaw.wordpress.com/2014/10/26/csainquiry-what-the-inquiry-must-consider/ ) for child protection law reform. It is urged to do so such as looking a child confidentiality, whether Working Together is working and so on.

10 ‘Transparency’ – The so-called ‘transparency’ debate is wrongly named (since it implies that a closed court is the starting point). Its real meaning is the extent to which family courts can lawfully made private – such as where children’s private lives are in issue. The present debate must be scrapped, the rules made lawful and privacy in family proceedings looked at in principled way. Any case starts from open court, and the law defines where privacy should start (and privacy will rule, most certainly, in many family proceedings).

Domestic violence gateway not unlawful, says High Court

Legal Aid Handbook

On Friday last week, the High Court gave judgment in  Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice [2015] EWHC 35 (Admin), a challenge to the evidence requirements (contained in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012) that must be met before legal aid in private family law proceedings can be granted based on the domestic violence exceptions.

Despite evidence of the impact the restrictions were having in practice, the Court found that they were lawful. The principal argument put forward was that, in making the regulations, the Lord Chancellor was acting outside the scope of the powers granted under LASPO. Lang J (with whom Fulford LJ agreed) said:

I accept the Claimant’s submission that the evidential requirements in regulation 33, such as the time limit of 24 months, do impose conditions which have to be…

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In-house media lawyer heading for the spotlight?

An important trend spotted here: that in-house lawyers are putting their jobs before their professional duty – hard, but the wrong way around… And does this blog perhaps refer to David Sherborne QC?

Lawyer Watch

An interesting Independent story on the Mirror’s Hacking travails has the barrister for the claimants, David Sherbourne, making an allegation in open court that earlier public statements relating to phone hacking made by senior Trinity Mirror individuals were “knowingly false”.  The Independent lists a whole set of statements including these ones:

“I am not aware of any deliberate transgression of the criminal law at the ‘Daily Mirror’ during my time as editor”. Richard Wallace, former ‘Daily Mirror’ editor

“The editors all confirmed that Trinity Mirror could say that our journalists work within the criminal law and the PCC”.  Paul Vickers, former Trinity  Mirror legal director

“Trinity Mirror’s system of corporate governance means that we work with the law and the code, which I believe we do”.  Tina Weaver, former ‘Sunday People’ editor

“To the best of my knowledge, the law and the Code are adhered to in practice”. Lloyd Embley…

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INHERENT INJUNCTION JURISDICTION OF HIGH COURT

Some ‘protean’ power…

In Mostyn J condones non-disclosure (https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ) I explained why the judge’s guidance in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam) could be regarded as a ‘cheats charter’. The same case and the judge’s comments on inherent jurisdiction injunction orders now merit review.

UL v BK was a case of a return date freezing order application in the High Court in which Mostyn J refused to make the order applied for; and for present purposes I do not query that decision. However, in so doing the judge felt it necessary to review the history of the statutory provisions which preceded Senior Courts Act 1981 s 37 (powers of the High Court to grant injunctions) and thus to review what he considered to be his jurisdiction to make an injunction order in the context of the wife’s application.

SCA 1981 s 37(1) provides that ‘The High Court may by order (whether interlocutory or final) grant an injunction…in all cases in which it appears to the court to be just and convenient to do so’. This statutory provision – as Mostyn J asserts – restates earlier statutory sources. In origin it derives from Parliament’s definition of a pre-existing state of affairs in law (well, strictly speaking, in equity): ie for centuries the High Court had had an inherent jurisdiction to make injunction orders.

High Court’s ‘hybrid’ powers

Mostyn J however, found that his powers were ‘hybrid’; and that such powers could only be exercised by reference to ‘the authorities decided under it’. Use of some ‘wider protean inherent power’ was therefore not permissible to a judge:

[14] It can therefore be seen that the power to grant an injunction, while placed on a statutory footing by [SCA 1981] s 37, does not derive solely from the legislature. Rather, it is a hybrid creation of the old equitable power and 19th century statutory intervention. Therefore, I do not consider that it is a solecism to refer to the power deriving from the inherent jurisdiction of the court. That said, the power is clearly defined and regulated by s37 of the 1981 Act alone, and therefore its exercise can only be effected under that section and the authorities decided under it. There is no scope for the use of some other wider protean inherent power (even if such exists, which I doubt) whether in the Family Division or the other Divisions. And the principles concerning the exercise of the power must be identical in whichever Division the relief is sought (italics added).

If this passage alone were to be followed it would seem to sound the death-knell for any form of High Court inherent jurisdiction. Search orders (Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12, [1976] Ch 55 now in Civil Procedure Act 1997 s 7(1)) and freezing (Mareva) injunctions insofar as they were made alongside the predecessor sections of s 37(1) would not be permitted.

Form this stand-point Mostyn J went on to consider the sources of the jurisdiction he was being asked to operate. Though there was no need for him to make any findings on the point, since he intended to exercise his discretion against UL, he explained why he considered he was entitled to find that the Court of Appeal and Anthony Lincoln J were wrong: that he – a puisne judge – was entitled to find that the Court of Appeal had made a decision per incuriam.

Stare decisis and the single judge

Before looking at Mostyn J’s findings two legal principles need to be clarified. The first is that of stare decisis and the extent to which a court can disagree with another’s decision; or the extent to which a puisne judge may flatly disagree with the Court of Appeal.

In general the Court of Appeal cannot review its own decisions: if it did the law would be uncertain. A finding that an earlier court had failed to consider a statutory provision might justify, as happened recently in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, that an earlier decision be reversed; for that decision had been made per incuriam (ie in error). An overlooked statute must provide higher authority which is binding on the later Court of Appeal (see per Lord Greene MR in Young v Bristol Aeroplane Co Ltd [1944] KB 718) and would avoid the party against whom it had been overlooked having needlessly to go to the Supreme Court to establish the point. However, this does not mean a High Court judge can try do the same of the Court of Appeal.

Secondly, in relation to ‘financial relief’ proceedings under Matrimonial Causes Act 1973, s 37(2)(a) provides as follows

(2) Where proceedings for financial relief [ie under MCA 1973] are brought by [A] against [B], the court may, on the application of [A] – (a) if it is satisfied that [B] is, with the intention of defeating the claim for financial relief [of A], about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;…

In UL v BK Mostyn J considered a number of statutory sources for the jurisdiction he regarded himself as being asked to apply. He failed to consider one or two sources: he makes no mention of the modern codification of the freezing injunction in Civil Procedure Act 1997 s 7(1) (codifies the freezing orde (formerly named after Mareva Compania Naviera SA v International Bulk Carriers SA, The Mareva [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep. 509, CA).

He summarised the statutory position as he saw it thus:

[15] I now turn to the question whether there is a difference in the test to be applied when ruling on an application for a freezing injunction depending on whether the application is made under s 37 Supreme Court Act 1981 or s 37 Matrimonial Causes Act 1973.…
[16] [Counsel for the wife] argues that my view that the two tests are congruent “does not accord with the test within the inherent jurisdiction (balance of convenience)” and is contrary to earlier authorities. The authorities are Roche v Roche (1981) Fam Law 243, Shipman v Shipman [1991] 1 FLR 250 and the speech of Lord Mustill in Harrow LBC v Johnstone [1997] 1 FLR 887.

He continued by finding that Roche v Roche had been decided per incuriam because, in his opinion (it is not part of the ratio of his decision in UL v BK), the judges had not referred to a variety of case law – ‘the Mareva jurisprudence’ – which he would have expected them to mention.

He finds that Shipman was ‘wrong’. Of this he says:

[27] It is noteworthy that in Roche none of the Mareva jurisprudence was referred to by the Court of Appeal in its judgments. With some trepidation I conclude that the judgment was per incuriam the many principles governing Mareva injunctions, which even by then had been developed.
[28] In Shipman v Shipman [1991] 1 FLR 250 the wife sought an order under s 37 Matrimonial Causes Act 1973 restraining the husband in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings. Lincoln J held that the terms of s37 had not been satisfied. But he went on hold, expressly relying on Roche, that it was wrong to believe that “there is no longer any inherent jurisdiction to freeze assets which may be put beyond the reach of the applicant.” He further went on to hold that:
“Counsel for the husband urges me to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions, and to assimilate the use of, and procedure for, injunctions in the Family Division to those in commercial Law. In my view the matrimonial field calls for a different approach. To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions, however genuine and well-disposed to the wife his present state of mind may be. Both he and the assets are out of the jurisdiction. Left without a job, and with new responsibilities, he will be faced with a temptation to eat into the whole of the fund.”
[29] I have to say, with great respect, that inasmuch as this decision follows Roche it too was per incuriam. Further, I do not shrink from saying that to the extent that it suggests that the restrictions and safeguards developed in the Mareva jurisprudence do not apply in family proceedings then the decision is wrong (emphasis added).

This article cannot ‘shrink from saying’, respectfully, that Mostyn J has misunderstood the bases for the jurisdictions considered in Roche and Shipman. He finds to be wrong what it must be assumed – and can indeed quite reasonably be assumed – that the judges plainly do understand what Mostyn J says they have got wrong. They find in accordance with the law and in the separate exercise of their discretion, that there are separate aspects of this jurisdiction. These separate aspects are well illustrated by the two cases. The making of an injunction orders is a matter for the court’s discretion. Secondly, there is a difference between a statutorily created remedy (eg MCA 1973 s 37(2)(b)); and a remedy which is part of the inherent jurisdiction, but which may later have been declared or codified by statute (CPA 1997 s 7(1))

‘The injunction must continue’: Shipman

Shipman illustrates the jurisdiction point very simply. A husband was to go to live in the US before completion of the couple’s ancillary relief proceedings; and he proposed to take with him his redundancy fund. Of this situation Anthony Lincoln J said, in effect: ‘I cannot find that Mr Shipman is ‘about to…’ breach s 37(2)(a). However, I feel uncomfortable about his plans (as quoted above). I am a High Court judge. I have inherent jurisdiction to make an order – not a Mareva order, freezing world-wide assets – but just this fund, in this country till the ancillary relief issues are resolved.’

This was not an order defined – or confined – by statute; nor could it be. Anthony Lincoln J was exercising a discretion vested in a High Court judge (just as did the Court of Appeal when they developed the Mareva and the Anton Piller jurisdictions). And such a jurisdiction may well be called upon increasingly in the 21st century to freeze electronic information and cyber assets of a form or forms which no statutory drafting could possibly predict at this stage.

Prerogative jurisdiction: judicial discretion

In both cases the judges exercised their discretion, within bounds accepted by the law at the time (and in relation to matrimonial property, much as it is now). A recent example of a fresh injunction jurisdiction created by Keehan J, a child sex abuse case in Birmingham – Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) in December 2014 – provides an excellent example of the use of by a High Court of his inherent jurisdiction. In that case, Keehan J – controversially, it must be said – made an order against 10 men who had been sexually involved in a variety of ways with a seventeen year old girl. Of his power to do this Keehan J first cited Waite LJ:

[45] In Re M and N (Minors) [1990] 1 All ER 205 at 537 Waite LJ said:
‘the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages’.

He took this as a basis for finding the otherwise novel orders he intended to make, could be made within the limits asserted by Waite LJ:

[46] I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent [child sexual abuse] strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self-imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

SCA 1981 s 37 creates the modern reference point for the jurisdiction. Its roots – in this case, the parens patriae jurisdiction (ie powers of the court also in wardship) – lie centuries earlier. It is those roots which provide the reference point for the inherent powers of the High Court, not the most recent attempt by Parliament (where such attempt exists: in Keehan J’s instance it did not) to codify a much older equitable or common law jurisdiction.

#CSAINQUIRY – WHERE NOW?

A clanking machine; and no direction home

The progress towards setting up the #CSAinquiry makes me think of a large old clanking steam roller going backwards up a hill. No-one on the metal machine knows what is at the top of the hill or what is over the cliff on the far side of the top; but the machine ploughs on, steadily. It has no real direction to go (but its drivers don’t know that). It has no direction home; and no planned way forward to the report which is expected to emerge.

A real problem for survivors, and anyone else who wants to see this inquiry emerge with a truly effective report, is that Snow May and the seven politicians all thought their job was done when the inquiry was announced on 7 July 2014. They assumed – I imagine – that it would merrily plough on from May’s breathless announcement; and that, all in good time, a report would emerge. The old clanking machine set off up the hill. None of the politicians and their various staff (1) contemplated in any structured way what the inquiry is expected to achieve. And (2) none – Snow May, or anyone else – have addressed the facts that the inquiry must have at a minimum the following:

• a format and structure (eg panel; panel with a chairman; chairmen with experts or assessors);
• that the basic common law (eg as to the impartiality of those involved) must be complied with; and
• that, given the importance of the inquiry – for survivors and the future of child law – some clear terms of reference must be defined.

The result is that the Home Secretary and the politicians have not addressed (1) (what the inquiry is expected to achieve); and all sorts of people – survivors, concerned individuals, family law reformers (like me), journalists, bloggers and the like – are making a lot of noise about the various elements of (2) without themselves – for all their concern and well-meaning – being clear as to (1) either. At least, that seems pretty much the position, as far as I can see.

And still the old clunking lump of metal trundles backwards up that hot scrubby hill.

For now I will define some of the terms which I think apply; and then on another day I shall try to be more specific about what is an inquiry under Inquiries Act 2005 and why I think this inquiry must be set up – as soon as possible – with a statutory format.

Format of the inquiry

An inquiry like this set up by a Government minister can be (1) discretionary – ie the minister can ask it to do what the minister defines by terms of reference; or (2) it can be statutory.

A statutory inquiry is set up under Inquiries Act 2005. Its powers to call witnesses are more extensive than for a discretionary inquiry; but its procedure is still intended to be relatively informal. (My impression is that the child sex abuse inquiry is not yet even clear, six months in, as to what procedures it will adopt: calling witnesses, evidence, representation for anyone, expert evidence etc). A statutory inquiry is subject to a set of Inquiry Rules 2006.

What might this inquiry want to do?

An enquiry has no power to establish guilt. It is not there ‘to see justice done’. That is for the police. The inquiry inquires, literally. It takes evidence – of fact and of opinion. And it reads documents (potentially mountains of documents with this inquiry). It then reports to the minister who set it up.

Someone – and it must not be the Home Secretary or any of her minders (‘officials’) – surely needs to be clear how the inquiry is to deal with the evidence: what evidence, why and from whom? For example:

(1) Evidence as to what happened to some survivors: eg by statement to third parties; by statement to specialist evidence gatherers etc.

(2) Evidence from those involved in cover-ups; politicians; police; institutions (schools, local authorities etc). Should these people be cross-examined and by whom?

(3) Witnesses who can describe the present system for dealing with child sexual abuse: police, courts, schools and other institutions: what is happening on the ground today?

(4) Witnesses – including health professionals, academics, family lawyers and other opinion witnesses – who can put forward thoughts for the future of child safeguarding and protection (eg review of Working Together etc etc).

The inquiry will need to direct itself carefully as to to what extent it can, or needs to, consider a wealth and massive variety of documents and of live evidence; and to avoid the 15 years and more which eg the Saville Inquiry needed. The inquiry will need to distinguish between witnesses of fact and witnesses of opinion (experts and assessors). As it is at present set up, with a rump of panel members, I should have thought that they may need to be reminded that they are not witnesses, or entitled to express an opinion (whilst they have a semi-judicial capacity). Truly, though, but the panel stretch of water, as things now stand, is very murky.

A firm hand – I would say a single hand – at the wheel of the clanking inquiry machine will be needed to unravel the forms and variety of evidence; how it is to be collated; and where opinion evidence and panel information are to be unscrambled and knitted together again for a coherent report.

Terms of reference

Once the above has been done (and it need not take very long if it is done in a clearly defined way (six months in, and there is no evidence that the Home Secretary is even beginning to think in any sort of logical way)) the broad format of the inquiry and the structure for what it is to do is will be reasonably clear.

Then – but only then – the Home Secretary, with a proposed chair (this is what Inquiries Act 2005 directs, if she chooses a statutory inquiry) can consult with interested parties (including survivors and their representatives) to put into clear words the terms of reference of the inquiry.

The clanking machine can then be turned so it is pointing in the right direction; it can be driven back down the hill onto a flat area – ie the potentially substantial array of information and evidence; and the beginnings of a realistic inquiry with a chance of achieving something for survivors and future generations of children can move forward in a structured and purposeful way.

To follow: definition of a ‘statutory inquiry’.