FAMILY COURT: SHREDS AND PATCHES TO A NEW RULE OF CLARITY AND FAMILY LAW  

The ununified family court

As I go away for a week’s holiday I record a matter of real sadness to me: the lack of clarity and any underlying philosophy about where family law is going. I take the ‘family court’ as my barometer. I grew up at a time when the Finer Report (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) was published (4 July 1974, when I had been admitted just over a year). It being the 1970s, we had a Finer Joint Action Committee with sub-groups for law; day care; housing and welfare benefits: Finer covered all these subjects including a guaranteed maintenance allowance for single parents (anyone remember negative income tax? It was linked in with that: there were people around then who had grown up with Beveridge and the concept of a welfare state.)

I was part of the Bristol FJAC, and of their ‘legal sub group’. Our main project was working towards the ‘unified family court’ (UFC). We included two circuit judges in our group. As an incidental we had an off-shoot working on ‘conciliation’ (mentioned almost in passing by Finer at paras 4.85-4.90). The conciliation offshoot – I was secretary to its steering committee – ultimately spawned the Bristol Courts Family Conciliation Service in the late 1970s. I remember an evening (17 November 1976) when all attempts to persuade what was then Divorce Court Welfare to take us on had failed, that Mervyn Murch and I agreed that we should get our fellow trustees to go private. So we did. Together he and I set about galvanising our colleagues to raise the cash through trust funds. And so the idea – eventually becoming mediation – grew. (Mediation, it seems to me, still falters for lack of a positive vision of itself and of any proper regulation which the public can trust: but that is for another day.) The Bristol scheme finally died in the 40th year after Finer was published.

A unified family court

The UFC idea was taken on by SLFA (as it now is not). It ran into the ground, certainly in the form Finer envisaged it. The government said it was too expensive; but would never agree a model which could be costed and so to make good that assertion. One idea Mervyn and I had in about 1976 was for a child maintenance scheme fixed administratively according to a person’s income by a county court clerk (all explained on a side of foolscap (A4)). If you didn’t like the figure you could appeal to a district judge who had Matrimonial Causes Act 1973 (or GMA 1973 as it was then) discretion to fix a figure. The child support scheme would never have been if that idea had taken on. But traction for the family court ideas faded, and the idea of a unified family court ceased to be part of any family law reformer’s real agenda.

Imagine my excitement when I discovered that a ‘family court’ was approaching the statute book; though I found it a little odd that the project was tucked away in Crime and Courts Act 2013 Sch 10. No one at Resolution (a group which represents family lawyers) had heard of it; and it could not be moved, then, to take any notice of the new plans. Thus did none of my childish family law dreams fade. The brave new world of a single family court serving the family breakdown community has passed most family lawyers by; and has produced – for all Sir James Munby P’s rhetoric – a thing of shreds and patches; and more or less more of what preceded its whimperish introduction last April. Another layer was added, with the court’s introduction, to the burgeoning maze of practice directions which pass for family procedural law (mostly produced in a scamper a few days before the ‘new’ scheme came on tap).

I find myself writing always ‘family courts’ (never the family court); and it depresses me. Why? (1) There is one particular administrative body which covers a large proportion of family breakdown work (you can’t say ‘family justice’ since that terms has been hijacked off for children proceedings): that is, indeed, ‘the family court’ (lower case initial letters per Sch 10). (2) There is a Family Division which takes particular forms of family work. (3) There is a Central Family Court (in reality Holborn County Court, but district judges there – who wear knee breaches (like real cross-dresser High Court judges) on formal occasions – are terribly touchy about their rank). (4) Child support work still goes off to the First-tier Tribunal; and (5) some goes to the civil arm of the magistrates’ courts. Sir Morris Finer and his committee would weep.

One of the cosmetic problems, I am sure – at least it should be only cosmetic – is that judges are obsessed by rank. You can see this in the fact that we now have to have three sets of reports to cover the little Alsatia (a lawless community off Fleet Street in the early 17th Century, to which Sir James Munby P (as he then was not) drew attention in Richardson v Richardson [2011] EWCA Civ 79: though he asserted that family law was not that) which family breakdown law is becoming. It is therefore essential that each rank is given its type of work, and that it keeps its dignities (as with the Holborn court). And worse: individual courts, even within the one ‘family court’, can have practice direction variations which apply only in their area. That is a truly discriminatory practice (ie unless you practice in Doncaster court you may not know what funny preferences they have there for (say) bundles; or even for what you have to wear in court!). The civil justice reforms of the 2000s were intended to eliminate such geographical discrimination.

A new family law procedural dawn

Where then do family courts go, for example, if Online Dispute Resolution is developed in the civil courts generally (and see further https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/ )? All civil proceedings are subject to the same common law (the point that Munby LJ was seeking to stress when he said family law was not (as he then asserted) some Alsatia). If ODR does take off, will the High Court judges (who have just looked backwards and found it pleasing in their review of financial remedy procedures – http://www.judiciary.gov.uk/publications/financial-remedies-working-group-report/ ) obstruct the idea; will the begaitered district judiciary in Holborn deny the possible costs benefits; or will 2015, 2016 or 2017 finally see the family courts (they remain that, not ‘unified’) peep at a bright new ODR procedural dawn?

And perhaps will Sir James Munby P finally understand that when it comes to procedural law reform and setting up a truly new family court he has, as emperor of the new scheme, no clothes; or little more than shreds and patches. I fear, brilliant judge though he is – and judging is after all a reactive role – he has no clear underlying coherent pro-active philosophy for his reforms. He has no real will to change the Dickensian procedural scheme over which he reigns. He has no vision for clarity in law (for clarity in law see https://dbfamilylaw.wordpress.com/2014/09/23/clarity-in-law-precedent-law/ ) and a system that ordinary people can understand and use.

A unified family court could rise incrementally on the ashes of what we have now (as Finer in part proposed). It would be devoted to a rule of family breakdown law; to clear case management; and, most important of all, to clarity in all laws and rules underlying them. (Everyone – not just a few lawyers – must be able to understand the law and rules – https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ .) The UFC would be based on the common law within a single court administration. It might even have judges (like Lord Phillips, who persuaded some judges to remove their wigs and dress differently in court) who could break their cross-dressing habits and appear – at least in public – dressed more or less normally. That is a completely cosmetic issue, I accept; but oh how important in the context of a new court with a new philosophy of relative modernity.

It is that new philosophy, new clarity and a new devotion to the rule of family law, which this new unified court must embrace. Who is up for making Finer happier in 2024, for his committee’s report’s 50th anniversary?

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A SIMPLE LAW FOR PRIVACY IN CHILDREN CASES

Where open justice is trumped by children privacy

JXMX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 should be required reading for every court dealing with children proceedings; and many other forms of family proceedings as well. In 36 unhurried paragraphs it explains the common law on when the open justice principle can be overridden (Roberts J took 177 paragraphs to do the same thing in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), Roberts J). The same common law and (as applicable) statute law which applies to all civil proceedings (though family proceedings rule-makers have introduced rules which impede the simple common law principles in a way which gives every impression of illegality: FPR 2010 r 29.10 and 29.11; and see https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ – my response to Sir James Munby P’s July consultation paper on what he calls ‘transparency’).

The background is that JXMX sustained severe birth injuries and sued the Trust responsible. She will always be a protected party, with people looking after her and her interests. Her claim was settled for a significant sum. The settlement went before Tugendhat J for approval, a hearing which is in open court. Her advisers asked for an anonymity order; and, for example, her mother had said that she was concerned that people might start looking to her for payments if the large sum awarded to her daughter was reported in the press. She was concerned about her and her daughter’s loss of privacy.

The judge was unconvinced. All of her daughter’s affairs would be looked after by a professional Deputy, and, he said, the mother’s fears were not objectively well founded.

The appeal

The Court of Appeal, in a judgment of the court, set out clear statements of principle in favour of open justice from cases such as Scott v Scott [1913] AC 417, and A v British Broadcasting Corporation [2014] UKSC 25. They referred to the summary of the common law position (now codified, largely, in CPR 1998 r 39.2). Children law, said Lord Reed in A, recognised that there may be many different cases in which the court must have regard to the need to do justice in a wider sense than merely reaching a just determination of the issue between the immediate parties. So, said the Court of Appeal, interests contrary to open justice may arise:

[14] Proceedings involving children and vulnerable adults will often call for a measure of privacy, not necessarily because of the inherent nature of the issues to which they give rise, but because such persons may suffer a distinct injustice if they are exposed to the publicity that may be generated if the proceedings are held in public. Moreover, a claimant who is, or will in due course grow up to be, a protected party may need protection from those who would seek to gain access to the funds that are intended to provide compensation for the injuries in respect of which they were awarded.

Family proceedings

One can entirely understand that those involved in any proceedings on family breakdown would want privacy; but why should they start (as FPR 2010 r 27.10 suggests they are entitled to do) in any different position than any other litigant Or as Jeremy Bentham would say, why should family courts judges be any less on trial than any other judge?

The correct approach on privacy, as ever, is to put the law first; and the law here is the common law ‘open justice principle’ (per Toulson LJ in Guardian Newspapers above; or as explained in MX); unless that openness should be restricted by order of the court (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593) or by statutory intervention – eg by contempt proceedings. As Lord Scarman explained in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

No one shall be punished for publishing….information 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. Parliament clearly had the general rule in mind when in 1960 it enacted that even the publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court save in specified exceptional cases: section 12 (1) of the Administration of Justice Act 1960….

The common law starts from the premise that anyone subject to it can do what they want, unless lawfully prohibited (hence the negative – ‘thou shalt not’ – approach of much parliamentary drafting (eg Administration of Justice Act 1960 s 12(1)). The default position in any civil proceedings is open justice. Exceptions – and there are sure to be many in family proceedings; and for protected parties generally – must be statutorily provided for or ordered by the court on a principled basis. That does not include in delegated legislation, especially legislation for which there are no obvious vires.

Many of the applicable ‘exceptions’ are summarised in CPR 1998 rr 31.22 and 39.2. Adopt those rules into FPR 2010 and – in procedural law, at least – the problem would be solved.

And there it is: a family lawyer (me) who, yet again, protests too much on this subject; for I know Sir James Munby P is still tying himself in knots over it. The law is very simple; and it is clearly as can be set out in JXMX v Dartford for any children case (subject to the provisions also of Administration of Justice Act 1960 s 12).

COMPENSATION FOR A ‘JUDICIAL ACT’?

Claims against a public authority: Human Rights Act 1998

Occasionally a lawyer is so outraged at the court’s treatment of a case that s/he is tempted to advise suing for a client’s losses caused by the court’s treatment of a case. Administrative errors by HMCTS may attract a claim. Judicial acts almost certainly will not (for reasons explained by Lord Denning MR below).

Human Rights Act 1998 seems to make a claim possible. Section 6(1) says that it is unlawful for a public authority to act in a way which is incompatible with a European Convention 1950 right (such as to a fair trial: Art 6(1)); if a person claims to be the ‘victim’ of an act which is unlawful under s 6(1) s/he can claim against the public authority (s 7(1)); and ‘public authority’ includes a court (s 6(3)(a)). HRA 1998 s 9(1) makes specific provision for claims for ‘judicial acts’ as claims under s 7(1)(a); but then s 9(3) (as explained below) sets the gate through which the claimant must pass almost impossibly narrow.

Judicial immunity from suit

In a clear and economically expressed judgment in Begraj & anor v Secretary of State for Justice [2015] EWHC 250 (QB), His Honour Judge KcKenna sitting in Birmingham as a High Court judge explains clearly why a s 9 claim is so difficult. The modern law on personal immunity to suit of judges to suit can be traced (uninterrupted by HRA 1998) to Lord Denning MR in Sirros v Moore [1975] 1 QB 118. This case, says the judge:

[21]… is the leading authority on the personal immunity of judges. In that case, it was held that judges have complete immunity for any act that is within their jurisdiction or which they honestly believe to be within their jurisdiction. It is plain that a very wide interpretation of what are protected acts was given.

As the judge explains, Sirros says (at 132D):

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and or uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse the ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

Lord Denning MR went on (at 135C) to set out what he described as ‘the test’ for judicial immunity:

… A judge of the superior court is not liable for anything done by him while ‘he is acting as a judge’ or ‘doing a judicial act’ or ‘acting judicially’ or ‘in the execution of his office’ or ‘quatenus a judge’. What do all these mean? They are much wider than the expression ‘when he is acting within his jurisdiction’. I think that each of the expressions means that a judge of the superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction, or he may be mistaken in that belief and may not in truth have any jurisdiction. No matter that his mistake is not one of fact but of law (as in Bushell’s Case, 1671 Vaughan 125) nevertheless he is protected if he in good faith believes that his jurisdiction to do what he does.

Meaning of ‘judicial act’

Begraj & anor v Secretary of State for Justice (above) was a long-running (around 30 hearing days) in the Employment Tribunal where staff of solicitors were making various discrimination claims. Police asked to see the judge, which she agreed to; and then she told the parties representatives. The respondent to the employment case applied for recusal of the judge, opposed by the Begrajs. The tribunal recused itself. Following an unsuccessful appeal from that decision, the Begrajs applied for damages for the costs thrown away as a result of another tribunal now having to hear the case all over again. They argued that speaking with the police was outside the definition of a judicial act as defined by HRA 1998 s 9(5) as:

“judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge;…

A district judge dismissed the Bergraj’s case as disclosing no reasonable grounds for bringing a claim and an abuse of the court’s process (CPR 1998 r 3.4(2)(a) and (b)). On appeal from the district judge, Judge McKenna was taken to HRA 1998 s 9(3) which exempts from compensation claims all judicial acts done ‘in good faith’.

Judicial act: not appealable

The Bergaj’s sought to persuade the judge that where a judicial act was not appealable, then it was outside the cover provided by s 9(3). On this issue and the question of what is a judicial act, Judge McKenna rejected the Bergraj’s case:

[20] … As it seems to me, the scope of the immunity under section 9 (3) HRA 1998 and the concept of judicial act in particular must, in the light of the authorities, be given a broad definition. As counsel for the Secretary of State submitted, under section 2 (1) CPA 1947 the State’s liability in tort to the actions of its servants only arises where it would be possible to hold the officer personally liable for that tort and as the purpose of section 9 (3) HRA 1998 is to preserve the section 2(5) CPA 1947 position in the context of human rights damages claims, it must be the case that where a judge would benefit from judicial immunity in respect of a particular act the State cannot be liable under s.9(3) of HRA 1998.

Had Parliament intended judicial acts only to be those which are appealable, said the judge, it could have said so ‘expressly. It did not’ (para 23). It will be rare case that a case gets past HRA 1998 s 9(3), as Bergaj and His Honour Judge McKenna shows.

ONLINE DISPUTE RESOLUTION: CAN IT WORK FOR FAMILY?

Online Dispute Resolution in civil claims

The expressed aim of the report, Online Dispute Resolution for low value civil claims (February 2015) by the Online Dispute Resolution Advisory Group (http://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf ) is to broaden access to justice and seek to resolve small scale (up to £25,000) disputes more easily, quickly and cheaply. It does this by ‘re-thinking access to justice’. It turns the present model of English justice, literally, on its head. As the authors demonstrate in Chapter 5, at present we have almost no state investment in ‘dispute avoidance’, not much in containment (forms of alternative dispute resolution). All investment is in dealing with litigation.

This is wrong, says the report: develop ideas around information to potential litigants so that they, for example, know what may be involved and what their entitlement is (in effect legal advice, but done in a neutral evaluative way). Next, comes dispute containment. Inquisitorial case consideration is conducted by on-line ‘facilitators’. This would be the stage at which mediation (in a conventional framework) would be involved. Finally if the case is not resolved then an online judge, working from papers and, perhaps some telephone conferencing, will determine the case. A court order will be produced, and will be enforceable, like any other.

The report illustrates this by a triangle. In the present system the triangle rests on its base, which represents the expenditure of conventional civil proceedings; whilst the narrowing apex of the triangle is the small state expenditure which is devoted to avoidance. In the on-line scheme the bulk of the work is in avoidance and evaluation, tapering – in expenditure terms – to a narrow court proceedings (what the authors call ‘dispute resolution’).

Clarity of law: essential for ODR

The real challenge, once the IT is accepted, and some rules redrafted, is to rewrite country’s laws and to set out the main contours of the common law in a form which people can understand (I defy most lawyer to understand what some welfare benefits law means). Clarity is fundamental. Then most averagely intelligent laypeople, with a dictionary, can follow the law and procedure; and so that, as happens in the administrative tribunals, there is not a festering priesthood of judges administering laws – which no one understands – like the medieval clergy with the Bible.

The possibilities for resolving disputes on family breakdown are enormous if it is understood that ODR ideas within the family breakdown process must be threaded into available Family Court alternatives where need be (eg domestic violence injunctions, urgent children proceedings). Procedure which was redrafted with ODR in mind and running in parallel with it, must help to reduce costs for those who have lawyers; and reduce the time and frustration – for judges and parties alike – where it works (money and some contact disputes, spring to mind; and why not – oh, come on, why not, seriously? – divorce on line).

Opportunities for mediation and busting Form E

As an example, imagine all ancillary relief cases being dealt with on-line. The model would not be quite the same as the ODR group propose; but the effect of completing an initial simple financial document on line early would give couples a preliminary idea (1) whether they should expect to have to engage in high-priced lawyers and barristers’ costs; or whether they can they do most of their case on line; and (2) how much of their case can be disposed of relatively simply because – on-line – they can find out how much of the facts can be agreed (valuations, documents to be disclosed etc). The more that a couple – even with quite substantial assets – come within range of (2) the more absurd the Form E exercise becomes and the more likely an ODR outcome might be achievable. Once you agree the assets in a financial case, the range of outcomes available to the court are narrow, and rarely depend on law. In the limited field of finance on family breakdown, there must be massive advantages to developing ODR ideas in the Family Court.

Joined up thinking is needed here. Instead of ODR, and apparently to increase its Alsatianisation of the Family Court from the CJC ideas, a Family Court judge-led group of mostly civil servants (assuming judges to be civil servants) have proposed that Form E, and most of the original financial remedy process, be retained. The Form E process becomes increasingly like the anaesthetist who is told always to administer a dose sufficient for heart surgery, before anyone in the operating room works out what the patient is in for. Front-loading of anaesthesia, and of litigation treatments, is not dissimilar.

ODR would go much further than family finances, I should have thought. Immediately it would reform family laws’ muddled mediation models. It would not replace face-to-face (adversarial) litigation in certain cases; but it would mean often that dispute resolution would precede legal advice not the other way around. This may not excite the bigger money lawyers; but it can only help a majority of the family breakdown population.

IRREMEDIABLY BROKEN MARRIAGE, BUT NO DIVORCE

Monty Python’s silly divorce story

Imagine a town in the western US about 150 years ago. Two gun-men are poised to shoot. By extreme chance both shoot as near simultaneously as possible. Both are killed. It would be impossible for both to shoot at precisely the same moment: one must have done so fractionally before the other. The local sheriff, the then law of Colorado (say) dictates, must find out who shot first before the two bodies can be buried.

The impossibility, or absurdity (according to point of view), of the sheriff’s job is akin to that of the Court of Appeal in Lindner v Rawlins [2015] EWCA Civ 61. The judges were dealing with parallel divorces arising from the same marriage. Mr Linder had filed a petition (Matrimonial Causes Act 1973 s 1(2)(b): unreasonable behaviour). The wife filed an answer denying his allegations. And, says the law report, she filed her own unreasonable behaviour ‘cross-petition’ (para [6]: ie perhaps a separate petition, though she could have proceeded on a prayer in her answer).

Either way the English legal system cannot find that a marriage has irretrievably broken down, though both parties say it has. MCA 1973 – it will be pointed out by someone – only enables the parties to have their marriage dissolved if the court finds (1) that the parties’ marriage has irretrievably broken down (MCA 1973 s 1(1)). That is plainly the case here: possibly that is the only thing that this couple can now agree on. But – and here’s the rub – (2) irretrievable breakdown, though blindingly obvious, must be found against one party or the other (or they could agree (if they could agree on anything) to joint decrees on their respective petitions; and I think if asked nicely I could find an old precedent to deal with the point). The s 1(1) finding must be only on the basis of one or more of the five facts set out in MCA 1973 s 1(2) and found on the petitioner’s petition.

I assume neither Mr L nor Ms Rawlins (formerly Mrs Lindner) would either of them blink. So their divorce show, already running for over two years (Mr L filed his petition in January 2013), must go on.  Lawyers costs are not grinding them down (see the next section of this note). The case goes to trial – unless they agree to let one of them to file a two-year living apart petition (MCA 1973 s 1(2)(d)), as suggested by Black LJ [31]. It doesn’t take reading much between the lines to wonder if this couple could even agree the date of birth of their first born; but if Heather Mills and Sir Paul McCartney could do it (agree to a s 1(2)(d) petition), then who knows?

But in the meantime, surely someone can dig out and dust down the stuff on no fault divorce and run this case through its law reform mill.

Of interest to all family lawyers, is the court’s summary and explanation of disclosure rules in family proceedings – and specifically divorce. I will return to that another day.

Expense of judge’s time

Black LJ, with great patience and courtesy, disposed of the husband’s appeal which mostly related to his determination to prove a lesbian relationship – and more – and to undermine his wife’s credibility. He wanted, but was not permitted, to do so by seeking disclosure of a variety of documents from the police which he thought would prove his case. (Meanwhile in children proceedings a circuit judge had found as a fact that H had broken W’s leg.)

The court then went on to lament the lack of lawyers in the case and, Aikens LJ, to put this at the door of the Ministry of Justice with the loss of legal aid (see italicised passage – my italics – below). Two awkward facts blot this judicial complaint: (1) this case started before LASPOA 2012 was in force; and (2) rarely did the legal aid authorities grant legal aid for defended divorce proceedings: that was the law when I started in practice, and at a time when the legal aid scheme was not 25 years old.

This was the first two legal aid point to which the court did not draw its own attention. The third is that we do not know what are the means of the parties (perhaps H was asked – W was not in court – in the course of his submissions to the court). However, if you can’t get legal aid, because your case has no merit (eg for defended divorce) then be you ever so poor, you will not get a certificate.

First Black LJ (who makes no direct reference to legal aid) said this:

[32] The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

And then Aikens LJ:

[34] I agree with the judgment of Black LJ.   I also wish, wholeheartedly,  to endorse her observation at [32].   The procedural issue with which this appeal is concerned is technical and unusual.   The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court.   The wife was neither present nor represented.   Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer.  To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file.  All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time.   The result is that there is, in fact, no economy at all.   Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.

Costs of procedure

I don’t imagine MCA 1973 s 1 will be changed very quickly to resolve the absurdity of both people saying their marriage is dead, but neither being able to kill it till the full panoply of a two defended divorces have been gone through.

Two other short-term remedies suggest themselves:

(1)        Makes rules simpler and clearer

It is relatively much simpler to amend procedural rules. Courts can make orders of their own initiative (FPR 2010 r 4.4); statements of claim can be struck out (FPR 2010 r 4.3(1)). On the court’s own findings the wife, by the sound of it, would be entitled to a decree. The husband could fight on, but when the wife obtained a decree absolute on her decree, the marriage would be dead. He would be left like the knight in Monty Python’s Holy Grail. He’d lost both legs and both arms, yet was still determined to fight on… Mr Lindner would have no marriage to dissolve.

Alongside that, much of the silly procedure – still modelled on pre-1965 rules – could be revised and the whole of FPR 2010 Part 7 revitalised and brought into the 21st century (which FPR 2010 failed to do). Oh, and every effort could be made to write it in ordinary English so that people like Mr Lindner and Ms Rawlins can understand it, with only a modest dictionary to hand (they can always look up words like nisi and decree, I’d say).

(2)        Help for the judges

And for the judges: one can understand entirely their irritation at having to trawl through untidy and ill-managed files, with bundles which shock Sir James Munby P, even on a relaxed day. First, some of this could be done by better-qualified and more court staff. In cases where law needs to be looked up, why not an advocate to the court? These things would have to be case-managed; but I bet a junior advocate (and not always members of the bar: solicitors, for instance, know a lot more about divorce practice rules than most barristers) would be much less expensive to pay for the time, however brisk and expert, of Black LJ. I bet the good LJ would be much happier if that could be arranged.

Such an appointment could not, in this case, have headed off the over-enthusiastic husband; but a few phone calls to him before the case came on might have saved LJ preparation time enormously; have narrowed the issues; and, even, pointed out to the two parties that a quieter life would be gained by one filing a s 1(2)(d) petition.

Better still, with help of this sort the real fear which Aikens LJ has: ‘… that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it…’ can be hoped to be avoided. Sooner or later we are going to have developing a trickle of applications to set aside appeals decisions because the court overlooked crucial law (CPR 1998 r 52.17); and thus will more Court of Appeal time be wasted.

CENTRES FOR DIVORCE

HMCTS tells Resolution its plans for issue of divorce process

Resolution have recently published, under the heading ‘Centres for divorce – important information’ (https://mail.google.com/mail/u/0/#inbox/14b5e54224361566) a document which represents what is to happen concerning issue of divorce petitions in the new family court. There is no balancing information from the Ministry of Justice (so far as I know; but see reference to request for information from FPRC below). The document raises, perhaps, as many questions as it answers. It suggests that those involved had little opportunity to negotiate with HMCTS (contact was only made with HMCTS as a reactive measure).

Resolution reports – without comment – the ‘rationale’ of HMCTS for ‘centralisation’: we have a family court so let’s have as many documents as possible issued in one place. Economically that may well make sense (as does that ‘legal advisers’ – ie magistrates’ legal advisers – deal with the decree nisi certificates: FPR 2010 r 7.22); but is that a good step for a family court which, by definition, should surely keep its roots in a relatively small locality. And, in a spirit of joined up thinking, a note – from HMCTS or Resolution, or both – as to how this plan links in with any thoughts on divorce becoming ‘de-linked’ from financial proceedings would have been valuable. The recommendation appears, for example, in the Final Report of the Financial Remedies Working Group (http://www.judiciary.gov.uk/publications/financial-remedies-working-group-report/) para 26, which would have been available to HMCTS by before Christmas (and to Resolution if they have a representative on the Working Group).

Divorce petition issue centres

The ‘centres’ scheme proposed by HMCTS and explained by Resolution are as follows: that

Decisions on number, location and timetable have been made within HMCTS at regional level, on the basis of local estate and resource considerations.  Some divorce centres are already fully or partly live.  The transfer of work is being phased (sic) to the centres, and the current plan is that each of the divorce centres will be fully operational as follows:

Region Centralised to Fully live with effect from
North East Durham, Bradford (and Harrogate)*, Doncaster November 2014
Wales Neath & Port Talbot, Newport (Gwent), Wrexham January 2015
North West Liverpool February 2015
Midlands Nottingham, Stoke-on-Trent February 2015
South West Southampton April 2015
London and South East** Bury St Edmunds October 2015

* work from Harrogate is planned to transfer to Bradford in due course

** the plans for London and the South East remain in development

‘Urgent applications’ it is said, can still be issued at ‘local hearings centres’; and, we are told by HMCTS and Resolution, that:

The Family Procedure Rules Committee [(‘FPRC’)] will be considering changes to the D8 petition form and Form A financial remedy form so that your clients can indicate where they would prefer hearings to take place, and why, if one is required.   If there is any dispute over the venue for hearings, this will be dealt with in the usual way by a DJ at the divorce centre.

Request for information from FPRC

None of what is in the HMCTS information is yet in Family Procedure Rules 2010. Rules will require to be drawn up to reflect these changes, I trust. My questions of the FPRC, which I have raised with their officials are:

  1.  How is ‘urgent’ to be defined so that a petitioner will know whether or not his/her petition can be issued at the counter of an individual ‘local hearing venue’ (presumably a court office)?
  2. By what criteria will transfer to a local court venue be directed
  3. Do hearings have to be at a court office or building; or can they be at any suitable building most convenient to one or (if possible) both parties?
  4. Sharing work with other centres: what does this mean and by what criteria will when to share be decided?
  5. What arrangements are to be made to link up all files in relation to each family breakdown in one court office (or ‘centre’)?
  6. Where are decree nisi hearings to be listed and ‘heard’?

‘NOT TO BE LISTED BEFORE MR JUSTICE MOSTYN’ 

Mann v Mann: capital payment on variation

Judgment in Mann v Mann [2014] EWCA Civ 1674 in the Court of Appeal is dated 19 December 2014; but it is only in the last few days that it has had special press attention (eg in the Daily Telegraph : http://www.telegraph.co.uk/news/uknews/law-and-order/11381729/Hostile-divorce-judge-thrown-off-case.html ). So what was the case all about; and what was actually said to dismiss Mostyn J?

In the last paragraph of her judgment, McCur LJ says that, on its return to the Family Division, the case must be listed before another judge. Of Mostyn J’s attempts to ensure that Mr Mann paid money to his former wife (the most recent reported case on the subject was Mann v Mann [2014] EWHC 537 (Fam), [2014] 1 WLR 2807) the judge said:

[29] The stated perception of H during the first instance proceedings that Mostyn J has “made up his mind about [H’s] ability to pay” is objectively confirmed by the intemperate judicial dialogues recorded in the transcripts of the proceedings between February and June 2014. During that time Mostyn J’s frustration is palpable and clearly arises from his obvious belief that H is deliberately and maliciously avoiding his legal and moral responsibilities to W. These views are recently moderated in the hearing conducted on 19 September 2014 when Mostyn J appears to row back from previous indications and prepare W, a litigant in person, to the possibility that she is “clutching at straws” in certain major respects; … Objectively, I consider that Mostyn J is compromised in continuing to deal with this case and would direct that it should be listed before another judge of the division.

Mostyn J is off the case; but how – briefly – did it get to this point?

The following are the procedural steps by which it arrived in the Court of Appeal. (1) A consent order was made in April 1999 which provided for transfer of the former matrimonial home to W, for periodical payments for the children, for payment of £50,000 to W by two instalments and for periodical payments for W at £24,000 per annum. (2) H applied three years later for variation of the spousal periodical payments order; and alongside that – eventually – W applied for an upward variation. By order dated 8 June 2005 under Matrimonial Causes Act 1973 s 31(2) (see further below), Charles J ordered capitalisation of the periodical payments (£1,300,000) and repayment of some arrears. (3) H appealed against that order; and then agreed to compromise the appeal: he was to make various payments which, if not made, would cause the 8 June order to revive.

Beyond enforcement of the 8 June 2005 order what remained to be done: that is essentially what the Court of Appeal had to consider. To seek enforcement (4) W issued a statutory demand which H applied to set aside and to appeal further. That appeal was settled by a further agreement dated 2 November 2011. (5) W applied for a Family Procedure Rules 2010 r 33.3(2)(b) – enforcement-by-whatever-means – order; and it is that application which came on before Mostyn J on 26 February 2014.

Minton v Minton lives…

Before looking at how Mostyn J dealt with the 33.3(2) application it is worth reflecting on the outcome of Charles J’s order. MCA 1973 s 31, according to its title, deals with ‘variation, discharge etc’ of certain financial relief orders under MCA 1973: mostly periodical payments orders.[1] It was amended extensively by Matrimonial and Family Proceedings Act 1984 following the House of Lords clean break order decision in Minton v Minton [1979] AC 593, [1979] 2 WLR 31. Most of the 22 sub-clauses of s 31 repay study from time to time. Section 31(7) deals with factors the court must ‘consider’ when deciding whether to make an order under s 31 (s 31(7)(a): essentially it requires an up-to-date assessment of finances in accordance with s 25(2)) In particular the court must consider the clean break provisions in s 31(7B). Section 31(7B) sets out what may happen if the court decides that a periodical payments order will be varied and payable over a limited period (s 31(7A)(b)). The sub-paragraph says:

(7B) The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of –

(a)an order for the payment of a lump sum in favour of a party to the marriage;

(b)one or more property adjustment orders in favour of a party to the marriage;

(ba)one or more pension sharing orders;

(bb)a pension compensation sharing order;

(c)a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for –

(i)a periodical payments or secured periodical payments order, or

(ii)an extension of the period to which the original order is limited by any variation made by the court.

Clean break on variation

The effect of this, said McCur LJ, was that – save for enforcement – the court had no power to make further financial provision orders under MCA 1973 (par [19]) once the capitalisation order was made by Charles J. This is perhaps the important point of principle to derive from this case: that the Court of Appeal re-assert the breadth and meaning, on variation applications of the clean break provisions of MCA 1973:

[15] In Minton v Minton [1979] AC 593, 608 E Lord Scarman propounded that : ‘Once an application [for periodical payments] has been dealt with upon its merits, the court has no future jurisdiction save where there is a continuing order capable of variation or discharge under section 31 of the Act.’

[16] Ward LJ in G v G (Periodical Payments: Jurisdiction) [1997] 1 FLR 368, 378 made clear that: ‘Minton does not narrowly refer only to cases where the claim for periodical payments was dismissed. The speech ranges much wider…Lord Scarman therefore spoke of dismissal or discharge or termination as displacing the court’s power.’

Mrs Mann had sought to keep live the order of Charles J so that she could argue that discharge of an order (as distinct from its dismissal) enabled her still to make further applications. That attempt, in the absence of specific provision for further application in the discharge order, was ‘dealt a death blow’ (para [17]), as far as McCur LJ was concerned. A clean break under s 31 means that (subject to separate and parasitic questions of enforcement).

Judicial attempts to evade effects of a clean break order

Mostyn J attempts to get around these clean break provisions, and – perhaps most serious – to do so in the face of a Court of Appeal stay order, was the subject of the appeal:

[21] In my opinion, this attempt of Mostyn J to relieve W’s impecuniosity or otherwise head this appeal off at the pass is doomed to failure. The mechanism plainly described is not a legitimate response other than upon an application for variation of a lump sum directed to be payable by instalments, which is an order amenable to variation, or else in response to a judgment summons pursuant to FPR 2010 r 33.1(1) and (2). Neither of these situations appertains here.

The steps actually taken by Mostyn J are recounted at paras [7] and [9], but are quite literally only of academic interest. Any court’s ability to do what Mostyn J was trying to do (eg to vary the post 8 June agreement) were not ‘legitimate’. And as said at the beginning of this note, McCur J ‘directed’ that Mostyn J should not deal with the case further.

The consequences of all this are for another day: suffice to say now that the attempts of Mostyn J to take the law into his own hands in ways which are held not to be legitimate (as here0; or which cause parties to resolve appeals by agreement against him (Rochdale Metropolitan Borough Council v KW & Ors (Rev 1) [2014] EWCOP 45: Mostyn J not following the Supreme Court on their definition of ‘liberty’) must ultimately be unhelpful, save in the short-term where one or other party, or the judge himself, gets away with it (and see also https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ (questionable ‘guidance’ issued by Mostyn J in respect of Imerman documents) and https://dbfamilylaw.wordpress.com/2015/02/06/bullying-in-the-family-courts/ (treatment of litigants in person)).

[1] MCA 1973 s 37(2); and including to vary MCA 1973 s 24A(1) orders for sale of property (see s 31(2)(f)), which, I confess, I hadn’t noticed till now