AA MILNE DOES IT IN SEVEN VERSES

The king asked the queen; and Fiona asked her friend…

AA Milne (also author of Winnie the Pooh) covered it in seven short verses (‘The King’s Breakfast’ from When we were very young (1924)). Roberts J does it in 107 paragraphs on 25 close printed pages (G v G (Legal professional privilege)[1] [2015] EWHC 1512 (Fam), Roberts J http://www.bailii.org/ew/cases/EWHC/Fam/2015/1512.html) and with much legal learning – mostly centred on (1) legal professional privilege (LPP) and legal advice privilege (LAP); and, if LAP did not apply, (2) confidentiality and whether it justified the grant of an injunction.

When the king wanted butter for his bread he asked the queen (obviously). The queen asked the dairy-maid who went to see the Alderney. The Alderney was about to go to bed, and suggested the king might like marmalade instead of butter. The king was not at all happy about that. As his little lower lip quivered the queen rushed back to the dairy-maid, who went to the shed. ‘The cow said:

“There, there

I didn’t really

Mean it;

Here’s milk for his porringer

And butter for his bread.”’

The king was very happy and – for that breakfast, at least – had ‘a little bit of butter to his bread’.

G v G: the facts

In G v G there was a trail from W (‘Fiona’) through two friends (queen and dairy-maid) which lead to Deborah Bangay QC (a parallel for the Alderney in AA Milne). There had been a 2010 consent order, following divorce proceedings, where Fiona had accepted ‘slightly less than half of’ £15.7M of the family assets. Later, she had discovered, she thought, that there might be rather more family assets to which her husband had been entitled. Had the order been made without full disclosure by H (‘Jason’)? She sought permission to appeal out of time (by application dated 23 July 2014) and thus to question the extent of disclosure and, if possible, to achieve the re-opening of her financial relief application against Nigel.

In September 2012 she had become aware of the possibility of the additional assets (in a trust fund of which Nigel was said to be a beneficiary). She spoke to her friend Debra, who spoke to her friend Patricia, who knows Deborah Bangay QC (all real names here); and Patricia arranged for Debra to speak with DBQC. DBQC said she didn’t take direct access instructions but gave Debra the name of Lewison Meltzer Piggott (LMP) and emailed Julian Ribet of LMP to say ‘[Fiona] may call you re performance of a consent order and ? poss non-disclosure’. This email came into the possession of Nigel as a result of DBQC having sent a copy of the email to his solicitors acting in the set aside proceedings. They then passed it to Nigel having given Fiona’s lawyers notice that they planned to do so ([15]-[28]).

Production to the court at trial of W’s set aside appeal was at the main issue before Roberts J:

[8] The central issue which I have to decide is whether or not the contents of an email dated 20 September 2012 which was sent by DBQC to Julian Ribet … were confidential and/or privileged. W’s case is that the contents of the email were (and remain) privileged and this court can and should prevent the use of the material at the forthcoming appeal hearing and require H’s entire legal team (who are now privy to that information) to withdraw from the case. H says no such privilege exists and he is entitled to use the email and the information within it in support of his case before Moor J in July 2015.

Why was this so important? Because Nigel takes the point (the appeal is yet to come on for trial) that delay in bringing this case to court may be fatal to Fiona’s claim. He and his lawyers want to know what was said by Fiona to Debra, in particular; and what may have been said by DBQC. Fiona claimed that LPP – specifically legal advice privilege (LAP) – applied to her conversations and the contact with DBQC; and that therefor the document should not be produced in court.

Roberts J characterised the issues she had to consider as follows (para [45]):

  • Does the conversation (or conversations, if more than one) between Fiona and Debra prior to her making contact with DBQC attract the protection of LPP (and specifically LAP)?
  • Does the (admittedly, short) conversation between Debra and DBQC on 19/20 September 2012 attract LPP?
  • Is this a case where injunctive relief should be granted to restrain the use of either confidential or privileged material?

Confidentiality and privilege

The conversations at (1) and (2) were confidential: the confidor could reasonably expect that the confidant would not pass on what was said. But to what extent might either conversation have the additional protection of privilege? The general rule is that there is a public interest in confidences being maintained (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (Spycatcher case) Lord Goff at 281: ‘… there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection’). However, confidentiality on its own can give way to another higher right, such as the right of the confidant or of a third party (perhaps Nigel in this case?) to a fair trial.

However, if LAP applies it provides a veneer to confidentiality. If established LAP is absolute (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487), and cannot be overridden. Roberts J defines privilege as:

[36] … LAP is a fundamental principle of common law which enables people effectively to seek and obtain legal advice about their rights and duties whilst guaranteeing that open and frank discussions with their lawyers will be protected from disclosure, regardless of whether or not they are involved in either current or contemplated legal proceedings. The privilege belongs to the client and not to the adviser….:-

(i) clients must be able to seek and receive legal advice if the proper administration of justice is to be maintained;

(ii) sound legal advice can only be given if the client is candid with the legal adviser; and

(iii) to ensure candour and openness, the law must guarantee that the communications between a client and legal adviser remain confidential unless the client consents to disclosure.

[37] These principles are firmly and deeply embedded in English jurisprudence: see R v Derby Magistrates’ Court, Ex p B [1996] AC 487 at 507 to 509,… B v Auckland District Law Society [2003] 2 AC 736 at 756 to 759, and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at 606 to 607. Their application in the context of confidential and/or privileged material produced for the purposes of matrimonial proceedings is commonplace ….

Resolution of the issues

Of the issues set out in para [45] (see above), Roberts J concluded that no question of LAP could arise from the conversation between Fiona and her friend Debra ([83]). Indeed how could it? No legal advice from a lawyer (R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1) – or anyone else – was involved, subject to the conduit point (below). Debra, said the judge, was not Fiona’s agent for the second conversation: between her and DBQC ([84]). There was no evidence of any legal advice having been given by DBQC. Fiona ‘was never in a [professional legal] relationship with DBQC’ so no question of LAP could arise ([88]).

The information remained confidential. Should the court exercise its discretion to grant an injunction – the appropriate remedy: see eg Istil Group Inc & Anor v Zahoor & Ors [2003] EWHC 165 (Ch), Collins J – to protect the communication from production in court? Quoting from Lord Millet in B & ors v Auckland District Law Society (New Zealand) [2003] UKPC 38, [2003] 2 AC 736 the judge pointed out that though the email was known to both parties (ie ‘the cat was out of the bag’), the cat ‘can be put back in the bag’ (G v G paras [67] and [101]) as Lord Millet explained. Roberts J could find no reason why any order should be made to prevent production of the email at the appeal hearing ([105]).

Cost of family proceedings

There is much – often justified – criticism of the cost of family proceedings. This case involved two silks and three juniors, and unnumbered solicitors and other lawyers in the background (including another silk). There were two real issues: did LAP apply; and if not was Fiona entitled to an injunction in respect of confidential information? The main protagonists knew what LAP means; so with expedition and limited erudition this issue could have been dispatched. If LAP did not apply, this then left the judge to exercise her discretion over whether or not to restrain production by an injunction in respect of the confidences.

It is tempting to wonder whether if the same issues had arisen where the assets were a fraction – say less than 10% – of those in G v G, would the court administration have permitted the same extensive treatment (as it did not, for example, in SC v YD [2014] EWHC 2446 (Fam) an appeal from a district judge on without prejudice rule immunity and a document). Devotion of an appropriate amount of the court’s resources is part of the overriding objective (FPR 2010 r 1.1). The law is the same whether the assets are £500,000 or £50M. I suspect an hour or two in front of a district judge would have resolved the same issues for the lesser money case; but is this to give both sets of parties fair trials?

[1] My title

HUMAN RIGHTS ACT AND FAMILY LAW: REFORM, REPEAL OR REPLACE

Convention law: a safety net

Human Rights Act 1998 and its incorporation of most of European Convention 1950 into English law has become a fundamental aspect of the English and Scottish constitutional framework; and it was often taken into account by judges long before its formal incorporation into British law in October 2000 (see eg Bingham LJ in W v Egdell (below)). However it must be recalled that it is mostly as a safety net that the 1998 Act and the Convention operate. That is part of its fundamental importance. The principle on which an effective welfare benefits system operates – as the post-War Beveridgeian system was intended to operate – is, as much as anything, as a safety net for those not provided for otherwise financially. So it is with the English statute and common law: that where these falter the Convention may plug the gap.

Toulson LJ (now Lord Toulson) explained the other side of this coin in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.

Speaking – as I do – as a family lawyer (I dare not call myself a ‘constitutional lawyer’ as this series demands) I believe the Human Rights Act 1998 has done three things, all of which may survive within the common law and judicial thinking for many decades; though the points made here may apply in many – or most – areas of law:

  • It has sharpened up our understanding of legal concepts we had always used, but which the Convention made us rethink
  • It has made judges and lawyers balance the principles applicable and summarised in the Articles; known in Convention terms as ‘proportionality’
  • It has made us all, perhaps family lawyers especially, re-think aspects of the laws of confidentiality and privacy

Understanding legal concepts

Most English lawyers, including family lawyers, would have assumed that anyone who came before an English court in the twentieth century received a fair trial; and most family lawyers in the 1990s would have accounted the husband in Mubarak v Mubarak [2001] 1 FLR 698 as one of the more extreme rogues to have been dealt with in the family courts. As luck would have it (together with Mr Mubarak’s ability to fund an appeal, one might say) it fell to his case for the Court of Appeal to review the fairness of the rules made under Debtors Act 1869 s 5 (still in operation in the civil courts) for committal to prison for a debt ordered to be paid by a civil court. In 2000 (when Mubarak was heard) Civil Procedure Rules 1998 had recently been amended to apply, in civil (but not family) proceedings, the rule that a defendant should not be required to provide evidence against himself. The then family proceedings rules had not been so amended. As the 1998 Act was coming into force and Art 6(3) of the Convention coming to be applied to English court proceedings, the state of English family proceedings rules lead Brooke LJ to comment as follows:

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.

Proportionality: ‘ultimate balancing’

Many judicial decisions – regardless of operation of European Convention 1950 principles – involve, and have always involved, the judicial balancing of conflicting principles. Convention principles do not change that. It has, however, helped to bring the exercise into sharper focus.

Lord Steyn explained the operation of the Convention balancing test in a criminal and family case (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 at [17]): should the right of the press to publicise information about mother’s trial override the right of her child to privacy:

[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.

These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166

and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338. In Lifely v Lifely [2008] EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:

[35] The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.” For Article 10 in that case, read Article 6 in this [Lifely] case.

[36] In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the “ultimate balancing test” [as above]:…

[37] In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew’s property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,… was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.

Confidentiality and privacy

Ten years before Human Rights Act 1998 (in November 1989) Bingham LJ concluded his judgment in W v Egdell [1990] Ch 359, [1990] 2 WLR 471 (an important case in the context of when confidentiality and advice privilege may be breached) by stressing the significance of European Convention 1950:

No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.

This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).

That said, rules in relation to privilege have been known to and developed by the common law at least since the sixteenth century (as explained in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513). This will not go if Human Rights Act 1998 is repealed.

Conclusion: the lessons of European Convention 1950

Privacy and the law of confidentiality is an important aspect of family law and needs to be tended carefully. This and so much else would be much better developed within the common law but under the oversight of European Convention 1950 principles. The family law will always want to recall the lessons of Mubarak and the balancing test in Re S. These lessons will remain; but how many other lessons, as yet unlearned, will be lost if the prominence of the Convention is lost to English and Scottish law? How many of Brooke LJ ‘dusty corners’ will remain unswept if an overarching jurisprudence, such as that provided by the Convention  is not regularly applied? To close the legal mind or any body of law to any legal development is a retrograde step. Like John Donne’s continent: any that is washed away ‘diminishes’ the whole.

#LEGAL AID: COMMITTAL PROCEEDINGS IN THE FAMILY COURTS

The two cases considered here say as much about the obscurity – even the injustice of that obscurity – of legal aid provision, as they do about grant of legal aid for committal applications in civil (including family) proceedings. Different applications must be made according to what civil court you are in (High Court and Court of Appeal on the one hand, or County Court or Family Court on the other). And to make the whole thing more obscure still application is based on criminal legal aid principles and regulations.

In family proceedings in the Family Court and for civil proceedings in the County Court the court itself has no power to grant legal aid for committal proceedings for disobedience of a court order. By contrast the High Court (including the Family Division) and the Court of Appeal has such power. The legal aid provisions which give rise to this confused state of affairs was considered fully by McCombe LJ in Brown v London Borough of Haringey [2015] EWCA Civ 483 (especially at [26] to [36] – http://www.bailii.org/ew/cases/EWCA/Civ/2015/483.html ). I am afraid that if application is to be made, and if it is necessary to refer a Legal Aid Agency (‘LAA’) decision-maker to law, there will be no substitute for referring in full to those paras [26] to [36], so I will not burden this note by quoting them.

Committal proceedings in the civil and family jurisdictions are treated as criminal proceedings (Benham v United Kingdom [1996] 22 EHRR 293 at 324; Hammerton v Hammerton [2007] EWCA Civ 248 at [9]; King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) at [16]. European Convention 1950 Art 6(3)(c) guarantees entitlement to legal aid where an individual is charged with a criminal offence and the interests of justice require. Application may have to be a firm with a criminal contract (this is not entirely clear from the reports); and must be on criminal legal aid forms (suitably amended, if need be).

In the County Court and Family Court application is to the Director of Case Work at the Legal Aid Agency (‘LAA’) (Brown v London Borough of Haringey [2015] EWCA Civ 483 at [35]), not – as in the case of the High Court and Court of Appeal – to the court itself.

King’s Lynn v Bunning (alleged contempt of a possession order) was proceedings in the High Court and Blake J was able, after consideration of the relevant ‘obscure’ legal aid provisions, to find that he could make an order of grant of legal aid in that Court (at [9]). Brown v Haringey, by contrast, was a case which proceeded in the County Court. The Court of Appeal considered that the County Court (and the same reasoning would apply to the Family Court, because of the lack of specific statutory provision) could not make a legal aid order. By deduction, said McCombe LJ, probably such a grant of legal aid could only be made by the LAA (at [35]). No means assessment was required (King’s Lynn v Bunning at [31]).

The conclusion that application in the County Court must be to the LAA office was reached deductively by McCombe LJ by reference to a variety of provisions which enabled him – finally, and with considerable reliance on the earlier Kyng’s Lynn case – to conclude that the High Court and Court of Appeal could grant legal aid (para [34]). In the absence of the County Court having express power to grant (and the same would apply to the Family Court) then, he concluded, LASPOA 2012 s 18 left it to the LAA Director of Case Work to grant.

For family proceedings this then leaves Re Ramet (application for the committal to prison) [2014] EWHC 56 (Fam), where Sir James Munby P – sitting in the High Court – granted legal aid himself, by reference to the criminal legal aid scheme and to King’s Lynn v Bunning (paras [32] and [33]) but without distinguishing, as does Brown v Haringey between proceedings in the High Court (including the Family Division) or in the County Court or Family Court (though in the particular case it was not necessary for him to do so). Ramet represents the law for family proceedings in the High Court but must give way to Brown, for proceedings in the Family Court.

NO COURT FUNDING OF ADVOCATE TO HELP THE JUDGE

Public funding of advocate to the court: not permitted in children proceedings:

In Re K & H (Children) [2015] EWCA Civ 543 (http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html) the Court of Appeal comprehensively allowed the Lord Chancellor’s appeal from Judge Bellamy’s attempt to provide limited funding to assist the court in cross-examination of a 17 year old alleged victim (Yvonne) of an applicant father’s alleged abuse. Thus in March 2015 it was possible to say that the score in the then legal aid cases in the High Court and Court of Appeal was 4-1 against the Lord Chancellor (https://dbfamilylaw.wordpress.com/2015/03/20/legal-aid-applicants-4-lord-chancellor-1/ ). With the reversal of Re K & H that score is now 3-2: a less optimistic margin for the laid applicants.

Meanwhile, in a no-score contest the Court of Appeal explained the absurdly arcane means by which legal aid may be applied for to deal with representation for committal applications in civil (including family proceedings) (Brown v London Borough of Haringey [2015] EWCA Civ 483: see separate blog).

It must be said that family law, when it comes to consideration of witnesses such as Yvonne, is in a primitive state compared with criminal law and procedure (as touched on below; and see discussion of ‘vulnerable witness’ procedural reform: https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ). Further, it remains the case that the Court of Appeal did not consider Re K & H in the light of any limited help which the Attorney-General may be able to offer; and that they could do no more – perhaps inevitably – than to urge ‘statutory provision’ for appointment of an advocate to avoid perceived breach of the European Convention 1950 in rare cases where this was demanded.

Victim, child or other vulnerable witnesses: cross-examination in family proceedings

In Re K & H a strong Court of Appeal (Lord Dyson MR, who gave the only judgment, with Black and McFarlane LJJ, who agreed with him) reversed a decision on the funding of an advocate for the court to cross-examine a child witness and alleged victim of sex abuse (‘Yvonne’) by the father in children proceedings. The family courts background to this was that in Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31 Sir James Munby P asserted the possibility that a judge might insist that HM Courts and Tribunal Service (HMCTS) could be required by the court to pay for assistance to the court where a perpetrator (alleged or already found guilty) was to cross-examine an [alleged] victim. An April 2014 amendment to Matrimonial and Family Proceedings Act 1984 (MFPA 1984), as part of the setting up of the Family Court, had provided, at s 31G(6):

(6) Where in any proceedings in the family court it appears to the court that any [unrepresented] party is unable to … cross-examine a witness effectively, the court is to-…

(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.

In Q v Q Sir James held that the words ‘cause to be put’ means questioning other than by the judge and explained his reasoning as follows:

[76] …. [what], in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J [said in Re H v L and R (see below)].

[77] The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are… great difficulties in expecting the guardian or the guardian’s advocate to undertake this role….

So, said Sir James, what can the court do if the cross-examining party is not legally represented (eg because they are financially ineligible (and cannot afford representation) or do not want representation)? In the criminal courts cross-examination of vulnerable witnesses may be limited (Youth Justice and Criminal Evidence Act 1999 s 22; and see Criminal Procedure Rules 2014 rr 29.8-29.13, especially r 29.9; considered in Safety measures: vulnerable witnesses, Simon Heaney in Family Law Journal at 7). The family court does not provide such protection for children or other such vulnerable parties or witnesses. Sir James therefore concluded:

[79] …. if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

This conclusion was rejected by the Court of Appeal in Re K & H (at [45]) as explained below.

Facts underlying the appeal

The facts of Re K & H are that in children proceedings there were three children of Jane (none of the following names are theirs):  Yvonne (now aged 17), Kerry (now aged 6) and Holly (now aged 4). Kerry and Holly are full siblings, whilst Yvonne is the mother’s child by an earlier relationship. In July 2013, she said that when she was 15 she was sexually abused by the father of Kerry and Holly (Michael). Michael has always denied the allegation. The proceedings before Judge Bellamy concerned what contact arrangements or orders should be made between Kerry and Holly and their father.

The Court of Appeal explained the judge’s findings as follows:

[2] HH Judge Bellamy decided (rightly) that, before the court could consider the father’s future contact with K and H, it was important to establish whether Y’s allegation was true. A fact finding hearing was listed to begin on 14 January 2015 at which he directed that Y should give oral evidence. The mother was legally aided. Although he had been legally represented from time to time, by the time of the decision with which this appeal is concerned, the father was a litigant in person. He did not apply for legal aid: he appeared not to be eligible for legal aid as he appeared not to satisfy the “means test” set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.

The judge therefore held as follows:

  • it was not appropriate for the father to cross-examine Yvonne (in fact he did not wish to do so);
  • it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father;
  • the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and
  • the costs of the legal representative should be borne by Her Majesty’s Court and Tribunal Service (“HMCTS”).

In his conclusions Judge Bellamy had relied on some of the comments of Sir James Munby P in Q v Q (see refs in [16] of Re K & H on appeal; and as explained at eg [23]). The Court of Appeal centred its criticism of Judge Bellamy’s findings ([22]-[45]) and on a review of what Sir James Munby P said in Q v Q (there was no decision in Q v Q). The Master of the Rolls specifically rejected (at [45]) what Sir James said in Q v Q at [79] above.

The court therefore allowed the appeal on the Lord Chancellor’s first ground of appeal ([63]), namely (see [21]): ‘(1) The court has no power to require the Lord Chancellor (via HMCTS or otherwise) to provide funding for legal representation outside the LASPO scheme’; and further that European Convention 1950 Art 6(1) and a right to a fair trial does not generally permit judges any form of exception in terms of funding.

Circumvention of a statutory code

The statutory basis of the father’s argument derived from Courts Act 2003 s 1(1) (that the Lord Chancellor has a ‘duty to ensure that there is an efficient and effective system to support the carrying on of the business of… the family court… and that appropriate services are provided for those courts’); and, he said, that Human Rights Act 1998 s 3 requires the court to interpret s 1(1) as ‘obliging’ the Lord Chancellor to provide funding where this is necessary ‘to prevent a breach of the Convention’. (This is an argument which may work for exceptional case determination funding under LASPO s 10(1): see eg R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; but it is subject also to means assessment.)

Lord Dyson rejected this argument (paras [27]-[31]) outside the statutory legal aid scheme. For a judge to order funding in this way amounts, he said, ‘to judicial legislation’ ([31]). Reference to a ‘duty’ under s 1(1) ‘cannot be used to circumvent a clear and detailed statutory code’ (para [27]; Credit Suisse v Waltham Forest LBC [1997] QB 362) as in the case of the scheme under LASPOA; and ‘nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less important is the requirement of clear statutory authority for public expenditure’ per Lord Bridge in Holden & Co v CPS (No 2) [1994] 1 AC at 33C; and see para [28]).

In words which will doubtless be quoted by Ministry of Justice where any creative funding is proposed by a prospective applicant, and where a party is not financially eligible, Lord Dyson concluded of the scheme under LASPOA:

[31] It is a detailed scheme. I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation. In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

Thus, he said, of any power the court might have to compel the Lord Chancellor to fund proceedings, Courts Act 2003 s 1(1) cannot ‘give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings’ ([36]).

European Convention 1950 Art 6

Lord Dyson introduced his consideration of any rights which the father might have under European Convention 1950 as follows:

[47] … It is not in dispute that the father has the right under article 6 to a fair hearing. Moreover, since the date of the hearing, the judge has joined K and H as parties and has appointed a children’s guardian. The children also have rights under article 6. Nor is it disputed that the father and the children have rights under article 8 of the Convention which can only be vindicated by their having an effective and correct determination of the issue of whether Y’s allegations are true. This is because, as the judge recognised, a finding that the father abused Y would be relevant, inter alia, in assessing the risk of harm that he poses to K and H and his capacity to meet their needs.

However he qualified this immediately by reference to the relative narrowness of the law in relation to grant to guarantee Convention rights (especially Art 6), considered most recently in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 at [46] ([49] and [51]; and see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial#.VWCEU0-qqko ). Before a court could consider whether Art 6 might be breached it must consider its other case management options ([52]), such as:

  • A direction that the party cross-examines only through a legal representative, perhaps subject to findings (as for the father in Re K & H as to his ability to pay for representation);
  • That Yvonne could, in reality, be cross-examined by the judge him/herself;
  • Yvonne could be cross-examined by a ‘justices’ clerk’; or
  • A guardian be appointed for the children and they (it must be assumed) could instruct an advocate to cross-examine.

(The court does not seem to have reflected on the relative cost of (4) as compared with what Judge Bellamy had ordered, and which was the subject of the appeal.)

So what of (2): cross-examination of a witness by the judge? The court was sympathetic as to a judge’s difficulties; but concluded (at [57]) by quoting Lady Hale in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at [28] that the important point was that examination of a child be ‘fair’, however it is done – which seems rather to beg the question in issue on the appeal, but not to provide a clear answer as to the meaning of s 31G(6) and how it can be dealt with.

Conclusion: in extremis there is no answer; but what of the Attorney-General?

So what is the judge to do? First the judge must consider the case management options in para [52] (summarised above). If public funding, including exceptional case determination funding (LASPOA s 10) is not available (eg because of the means of the party concerned), and a party cannot be compelled to fund the representation of an advocate to cross-examine, the Court of Appeal in Re K & H can offer no solution.

In extremis, the court accepts the ‘concern expressed by Sir James Munby P in Q v Q (above); but can only suggest fresh statutory provision (in the absence, presumably of the courts or common law being able to assist):

[62] … In order to avoid the risk of a breach of the Convention, consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative…

And fresh ‘statutory provision’? If it costs money – any money – Lord Chancellors since 2010 have not been provident. It is likely that the Court’s urgings will be ignored, like other judicial urgings on legal aid over the past three years.

This still leaves the Attorney-General (as directed by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162). That case and the role of the Attorney in assisting the court was not considered here; but that role (Attorney-General’s Memorandum of 19 December 2001; set out in Family Court Practice at p 2869; http://www.iclr.co.uk/family-legal-aid-funding-january-2015/ ) must be considered for the full tattered picture of public funding to emerge.

DUTIES OF A CASH-STRAPPED PUBLIC AUTHORITY

Public authority in civil and family proceedings

A public authority bears responsibilities to the court in litigation because it is a public authority. This was illustrated by Midcounties Co-Operative Ltd, R (on the application of) v Forest of Dean District Council & Anor [2015] EWHC 1251 (Admin), and the comments of Singh J on the local planning authorities’ dealings with opposition to an out-of-town planning application. Could the comments of the Administrative Court ever apply to cash-strapped children departments in care proceedings, especially in relation to appeals or applications to discharge of care or placement orders?

Cinderford, in Gloucestershire, had been subject to successive planning applications for an out-of-town supermarket proposed by a development company. The application was opposed on judicial review by the Co-op. Initially the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, then twice. On a third occasion they were challenged yet again; but this time their approach was: they disagreed with the challenge, but did not appear in court to dispute it. They left it to the supermarket to whom they had given planning permission to present the case as to why it was not unlawful to grant them permission.

Grounds for non-appearance of local authority: cash constraints

The local authority pleaded cash constraints for their non-appearance at the judicial review hearing. They merely wrote to the court saying that they opposed Co-Op’s challenge, and left it to the developers to present the grounds of resistance.

‘[148] … What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the interested party [Trilogy Developments Ltd] in its resistance to the challenge.’

Their pleaded costs constraints left them taking no further part in the proceedings. However, said the judge, whilst financial pressures are one thing, ‘the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted’ (para [148]).

Singh J criticised this approach and allowed Co-op’s application for a quashing order. In doing so he made a variety of general comments. A council, or indeed any public authority, should not behave like a private litigant. It owes wider duties, because it is a public authority. Judicial review is not like ordinary private litigation in particular

‘[149] More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular… a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.’

All parties have a duty to be frank with the court; but, said the judge (para [150]) this will this will not necessarily provide all the information needed: for example, a party ‘may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge’. (Helpful guidance to public authorities is provided by the then Treasury Solicitor in December 2010 is provided by Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285368/Tsol_discharging_1_.pdf; and much of what is said here may be of guidance to local authority lawyers in children proceedings.)

Steps of a cash-strapped local authority: duty of candour

So what is a cash-strapped local authority to do? Singh J concluded his judgment with the following addressed to public authorities:

[151] It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following:

(1) whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;

(2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;

(3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;

(4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.

In summary terms – applicable, perhaps, to any public law proceedings (judicial review and children proceedings) where a local authority is a party – has a local authority done any or all of the following:

  • Has the authority made available to the court and the parties all documents relevant to the issues to be considered by the court (para (1));
  • Does the local authority need to do any more: eg to file a statement (or other court document: ie an acknowledgement of service and summary defence in judicial review proceedings) to explain its decision-making process and any other relevant issues of fact and of law (paras (2) and (3)); and
  • Should a representative of the authority (not necessarily a lawyer) be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so?