FAMILY LAW: LEGAL AID FOR THE VULNERABLE, BIG MONEY CASE MANAGEMENT

Exceptional case funding for the vulnerable and a ‘statement’ for high net worth cases

In the first half of July 2015 two documents emerged for consideration by family lawyers. It is worth reflecting on their significance for family law litigants, for family lawyers and for the rule of law. I refer first to the judgement of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) given on 13 July 2015; and secondly to a ‘statement’, ‘revised’ and reissued on 1 July 2015, by – it says – the Judiciary of England and Wales and entitled Statement on the efficient conduct of financial remedy hearings allocated to a High Court judge whether sitting at the Royal Courts of Justice or elsewhere (the FR statement: http://www.familylaw.co.uk/system/redactor_assets/documents/3081/Financial_Remdies_-_transfer_to_HCJ_-_efficient_conduct_-_1_7_15_.pdf).

In the case Collins J develops the common law by explaining what the exceptional case funding (ECF) scheme under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10 and revised Lord Chancellor’s guidance (under LASPOA s 4(3)(b)) has still not complied with what Parliament intended. Collins J was particularly concerned for the legal aid rights of the vulnerable and those lacking capacity.

The FR statement could have been – I say it should have been – issued legitimately as practice direction alongside FPR 2010 rr 1.4 and 9.15 (court’s case management duties). It relates to case management in higher net worth matrimonial finance cases (£15M+ total assets). It records that Mostyn J, the author of the document, is ‘authorised by the President [Sir James Munby] to release this statement’ (§1). (The President has full statutory powers to issue Practice Directions; and he chairs the Family Procedure Rules Committee (FPRC) which is responsible for making rules for family proceedings (Crime and Courts Act 2013 s 75(2)).

Legal aid: case law reforms

In https://dbfamilylaw.wordpress.com/2015/07/17/mr-justice-collins-and-is-v-laa-good-news-for-family-lawyers/ I recorded that the score for civil legal aid case law (LA Apps v LAA) was 5-2 against LAA (the Lord Chancellor). IS is one in what will no doubt be a continuing legal battle between the Lord Chancellor and his judges as they explain to him that – even by his own, and his now politicised civil servants’, standards – he has got wrong what Parliament told him to do in LASPOA s 10 (the safety net designed for those who are no longer entitled to civil legal services under the 2013 scheme). It is a remarkable struggle to watch – especially when judges like Collins J is out in the field; but it is depressing also to find that the government minister entrusted with the rule of law is so frequently found to be acting illegally.

I explain how I arrive at the 5-2 score in https://dbfamilylaw.wordpress.com/2015/07/17/mr-justice-collins-and-is-v-laa-good-news-for-family-lawyers/; and this does not include King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) and Brown v London Borough of Haringey [2015] EWCA Civ 483 where the Lord Chancellor was criticised for the opacity of his scheme for legal aid for committals (recently, it is to be hoped, clarified: as explained here http://legalaidhandbook.com/2015/06/21/applying-for-legal-aid-for-contempt/). In my above blog and at http://www.familylaw.co.uk/news_and_comment/exceptional-case-funding-lord-chancellor-must-still-do-better#.Vaoi6_mqqko I have discussed IS. The legality of the FR statement must now be considered.

Legitimacy of the FR statement

The statement seems to do what its title suggests. I do not know how many anticipated contested cases it covers; but it cannot apply to a case unless ‘The overall net assets exceed £15m’ (§3(1)), perhaps only if more. It seems to me, the ‘statement’ only deepens the veneer of illegality (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Diplock) which shrouds the financial relief procedural rules. Family finance lawyers live with it, it seems; but the rules which they allow their clients to undergo are riddled with illegality; and this FR statement only adds to that.

One thing that the spate of legal aid cases against the Lord Chancellor must have taught family lawyers is always to be sceptical of delegated legislation. Has the body which produces that legislation got power so to do? IS explains why the Lord Chancellor guidance does not comply – still – with statute law.

For the making of family proceedings rules  FPRC’s powers go no further than Courts Act 2003 ss 75-76 (eg they may ‘modify’ rules of evidence: s 76(3): no more); and yet amongst the errors in FPR 2010 Part 9 (and its supporting rules) are the following:

  • FPR 2010 r 5.2 deals with filing of a financial statement (Form E). Documents must be filed as set out in the rule (and as Blake J noted in Kings Lynne (below) a form cannot change the law). These documents include:
  • A valuation of matrimonial assets and eg any business. Basic common law principles make it clear that that valuation information is covered by litigation privilege (Waugh v British Railways Board [1980] AC 521); and only the person to whom the valuer has reported can waive privilege.
  • Value of a property which a party seeks: the court is not entitled to insist on such an admission, which might in a minority of cases prove a hostage to fortune
  • FPR 2010 rr 9.15(2) and 9.16(1) are hopelessly ultra vires. They are obviously against the law as set out in MCA 1973 s 25(1), as explained by the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813. Fortunately no one who is legally represented takes any notice of these rules; but what if a keen litigant in person insists upon them? Will a district judge have to say: well, yes, you are right Mr/s X; but don’t take any notice of those rules – they’re not lawful.
  • Denying a person the right to refer to a Calderbank letter by a rule change – ie the rule represents the overriding public policy by a MoJ committee whose brief is defined by Courts Act 2003 s 75? Maybe that’s legal (even if illiberal) but it surely sails close to a legality wind?

Making the law

This is not the place for a detailed discussion of how the law is made; but it is worth recording the following outline (offered at a level applicable at law school):

  • Primary law: our law is based in the common law. This and statute law is what I term ‘primary law’.
  • Common law can be overridden by statute expressly or by implication; or, as is often the case, by a statute putting into Parliamentary words what was, or often remains, the common law (see eg Administration of Justice Act 1960 s 12(1)(a) for private trials of children proceedings or Proceeds of Crime Act 2002 s 330(10) for a definition – in that context – of ‘privileged circumstances’).
  • Statute may empower Ministers or other bodies (eg FPRC: Courts Act 2003 s 75) to make regulations or rules ie delegated legislation.
  • In the civil litigation context Constitutional Reform Act 2005 enables certain defined individuals (mostly the Lord Chief Justice, but also the President of the Family Division) to make practice directions (as explained eg in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171).
  • Statutory ‘guidance’ (Lord Chancellor guidance, under LASPOA 2012 s 4, was at issue in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and many children lawyers will be familiar with the guidance contained in Working Together (March 2015)).
  • The common law comes into the frame again, where judges – mostly at High Court level – explain what any of the above mixture of primary and delegated laws mean in a given situation and where two or more parties cannot agree.
  • Below this we enter the murky area of ‘practice’ and other non-statutory ‘guidance’; protocols (there are a variety of protocols which accompany CPR 1998); and now, it seems, ‘statements’.

So far as any of the instruments at (7) are concerned their authoritative basis will always be debatable. They are not statutory: compare eg the guidances at (5) which is prescribed in an Act of Parliament; or as a practice direction – if properly made – will have a legal basis. Bovale above explains this point. The authority of the Munby/Mostyn FR statement, seen in this light, is limited (and could as well be done properly by a practice direction alongside FPR 2010 r 9.15(5)(c).

This hierarchy of authority applies in all contexts, whether a legal adviser or other reader is looking at delegated legislation or guidance under eg LASPOA; as it does to the rule-making and other regulatory powers of our family law administrators (a job often taken nowadays by senior judges).

‘Illegality’ and rule-making

‘Illegality’ was explained in the administrative law context by Lord Diplock (and thirty years later the definition holds good) in Council of Civil Service Unions v Minister for the Civil Service (above):

By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

Once a judge puts out a statement like the financial remedy statement, he does not do so as a judge, any more than the Lord Chief Justice or the President act as judges when they make practice directions. Judges take on a hybrid capacity: they become legislators when they make practice directions or administrators (part of the executive) when they define case management. They are civil servants, or functionaires in France or aparatchicks in more authoritarian regimes.

In administrative law terms High Court judges become decision-makers. They must ensure that they have the statutory power to make their decisions; and their decision-making powers – like those of any other functionary – can be challenged before a High Court judge, as Lord Diplock explains above.

Sir James Munby P and FPRC have ample powers to frame delegated legislation (respectively practice directions and family proceedings rules). They do not need another functionary – like Mostyn J, in this context – to frame any further sub-subsidiary legislation.

Fiddling with £15M assets while legal aid Rome burns

I return to a comparison of family law’s concerns with the vulnerable and financially needy and with those who are arguing over £15M, and often much more.

A series of senior High Court and Court of Appeal judges (only a couple of them with any known family law practice) have in a series of very carefully argued judgements developed the common law, legally and authoritatively in the area of exceptional funding (much of it in relation to, or directly affecting, family proceedings). These judges include Collins J (x 2) in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin) and IS (above); Blake J in King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB); Beatson LJ and Ousely J in R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), Green J in R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin); and half as many cases again in the Court of Appeal.

Mostyn J and Sir James Munby P have made the obiter comments on legal aid. They are of force but no enforceability. For legal aid litigants they butter no parsnips (unlike eg the judgments of Collins and Blake LJJ and the Court of Appeal). They have spent many hours over case management of high net worth cases. If their joint efforts had been directed to producing a ‘statement’ – concurred in, preferably, by all Family Division judges – on how to deal with ECF or legal representation for vulnerable parties (both subjects covered by Collins J in his 30+ page judgement in IS) then perhaps the cause of family justice for the many (not just the few whose assets exceed £15M+) might be further forward.

And it must be recalled: the findings of the High Court, the Divisional Court and the Court of Appeal on questions of legal aid, referred to throughout this article, represent the common law. They are put out by Senior Courts judges of the highest calibre in open court often after detailed legal argument by specialist lawyers. The financial remedy statement is not the law. It is but a document produced by one more senior Ministry of Justice civil servant.

Mr JUSTICE COLLINS AND IS v LAA – GOOD NEWS FOR FAMILY LAWYERS

An important way forward for clients in family law proceedings

The decision of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) – on 15 July 2015 – should be good news for family lawyers (see especially §[40], set out in full below); and by my calculation it takes the score as between legal aid applicants and the Lord Chancellor (Legal Aid Agency) in the Senior Courts to 5-2.

IS v LAA (above) represents a review by Collins J of the exceptional case funding (ECF) provisions of LASPOA 2012 s 10 in the light of:

  • R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (‘Gudanaviciene 2’) where the Court of Appeal shared the adverse view of Collins J of the Lord Chancellor’s Guidance on ECF and largely allowed the appeals against his Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin), Collins J;
  • Exceptional Funding Guidance (Non-Inquests) (‘the Guidance’) revised in the light of Gudanaviciene (but see below; and see http://www.familylaw.co.uk/news_and_comment/lord-chancellor-s-guidance-on-exceptional-case-funding#.Vae_fPmqqko); and
  • Experience, as presented to him by the parties, of operation of the ECF scheme one year on from his own earlier Gudanaviciene decision of 14 June 2014.

IS had been one of the respondents in Gudanaviciene 2, but his appeal was abandoned since it was not necessary for him personally to pursue it. The Official Solicitor (with the Public Law Project instructing leading counsel for IS and the OS as his litigation friend) wanted to clarify the position as to the funding of litigation by vulnerable individuals (or who otherwise lacked capacity, eg as children or adults). There were worries that such parties to proceedings might not secure ECF funding. The case therefore came before Collins J as a test case (see §[5]).

Framework of the judgement

In a truly measured and carefully structured judgment Collins J set out his views on why the legal aid scheme still presented to him as unsatisfactory:

  • The law – such is the complexity – even to most lawyers – of the legal aid statutory provisions that almost one third of a long judgement is taken up by a summary of the applicable law ([7] to §[26]).
  • Operation of the scheme [40]-[65] – Collins J, from his independent stand-point, sees the scheme as ‘wholly deficient’ ([40]). ‘The scheme is not working as it should’ (§[42]). The judge considered that the approach of LAA decision-makers was ‘unhelpful’ (§[62]).
  • Protected individuals §[73]-[80] – the position of ‘vulnerable’ individuals in family proceedings has been under review by Family Division judges for over a year. A wider and more accurate term (ie to recognise parties, witnesses and the forms vulnerability can take) might be ‘protected individuals’. Collins J considers their and the OS role in relation to them and legal aid in detail.
  • Merits test and its European Court jurisprudence is dealt with at §[81]-[97], with a series of criticisms by Collins J of its operation by LAA:

[96] There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist….

Collins J takes the view that even the statutory merits (‘prospects of success’) test and the LAA approach to it, is wrong:

[97] …the circumstances of each case will be determinative and there can in my view be no doubt that the way in which merits [of civil legal services applications] have been approached has been flawed.’

Conclusion: ‘there must be changes’

The first and main ground of the judicial review application is summarised by Collins J thus:

[27] … [The] first ground is that the scheme as operated by the first defendant is intrinsically unfair because it does not enable those who need assistance in either making or resisting claims or ascertaining with proper expert advice from a lawyer whether they have a valid claim or defence which needs representation to obtain the necessary assistance. The result has been and continues to be that some of the most vulnerable are deprived of a fair hearing in that they are unable to present their cases effectively. Mr Hermer [counsel for IS] described this ground as an “evidence based impeachment of the operation of the ECF scheme”.

Collins J answers this ground (and a second relating to LAA dealing with urgent applications) as follows:

  • ‘There must be changes to the scheme’ ([105]):
  • Application forms are ‘far too complex’
  • The ‘obvious unfairness’ test in Gudanaviciene 2 must be set out in the application form
  • Provision of legal help for providers who assist must be considered by the Lord Chancellor
  • Operation by the LAA of the merits test is dismissed by Collins J in one short paragraph:

[106] The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.

  • The ECF scheme is not providing the safety net provided by ministers ([107]).
  • The ECF scheme is not in accordance with LASPOA 2012 s 10, in that ‘it does not ensure that applicants’ human rights are not breached or are not likely to be breached’.

IS and the family lawyer: a scheme which is ‘wholly deficient’

Though IS and Gudanaviciene (Ms Gudanaviciene’s case itself) were immigration cases, it is clear from what Collins J says that he considers the depredations of the LASPOA 2012 civil legal aid scheme and the ECF under s 10 to have fallen most heavily on litigants in the family courts. His assessment of operation of the scheme for ECF, especially in family cases, is:

[40] It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

The Lord Chancellor Guidance – even in its revised form – must look wider than European Convention 1950 Art 6, says Collins J. For example many family cases, especially where children are involved, engage Art 8. It is as important that a litigant has a fair trial, as – especially in family, but also in some immigration cases – that Art 8 is considered (as Gudanaviciene 2 itself stresses). No article is of more importance than another (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn).

And again the pejorative epithets are applied by Collins J. For example, as applied to the family courts, the scheme is ‘wholly deficient’. If it works as Collins J considers LASPOA 2012 s 10 should be operated by LAA, then ECF funding should be available for many more family courts cases.

Legal Aid Applicants v Lord Chancellor

And the score? Since March (when https://dbfamilylaw.wordpress.com/2015/03/20/legal-aid-applicants-4-lord-chancellor-1/ was written) the LA Apps have lost in the Court of Appeal against the Lord Chancellor in Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015) but won in the High Court on IS. My tally is as follows:

Legal Aid Applicants (LA Aps)

  • JG v Lord Chancellor and ors [2014] EWCA Civ 656
  • R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622
  • R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), Green J
  • R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin); and
  • IS

Lord Chancellor (LAA)

  • R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin);
  • Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015)

It is not a good record for the upholder of our rule of law, to find that his judges so regularly consider that he and his department have acted unlawfully; but that is for another day. Family lawyers can now help their clients to take advantage of what Collins J and IS seems to offer them.

It is not a good record for the upholder of our rule of law, to find that his judges so regularly consider that he and his department have acted unlawfully; but that is for another day. Family lawyers can now help their clients to take advantage of what Collins J and IS seems to offer them.

‘EXTENSIONS’ TO LEGAL AID SCHEME FOR DOMESTIC ABUSE

A worsening of the applicant’s position?

Modest amendments to the legal aid scheme come into force on 17 July 2015 under Civil and Criminal Legal Aid (Amendment) Regulations 2015 (SI 2015/1416: ‘CCLA(A)R 2015’; http://www.legislation.gov.uk/uksi/2015/1416/pdfs/uksi_20151416_en.pdf. Already these amendments have been given a muted welcome by, for example, the Law Society and Resolution. The welcome should perhaps be more limited still: one amendment seems to worsen the position of the applicant and the second to provide but a grudging change.

If I were a family court judge I would be very cross that civil servants in Legal Aid Agency (‘LAA’) could, in effect, tell me what was domestic abuse and when I could protect a party to proceedings under Family Law Act 1996 Part 4 or Protection from Harassment Act 1997 from such abuse. The effect of Civil Legal Aid (Procedure) Regulations 2012 (‘CLA(P)R’) reg 33 is that it is unlikely – because of the proscribed way in which legal aid is available to those whose means justify it – that the starting point for exercise of judicial discretion is restricted by the 2013 legal aid scheme (under Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) Sch 1 para 12). (It is worth noting that reg 33 also ignores – in a more or less unprincipled way – basic common law rules about issue estoppel; but that is perhaps for another day.)

‘Extensions’ to civil legal services scheme

It is said that amendments have now been made to CLA(P)R 2012. The explanatory note to the amendment regulations states:

Regulation 2 amends the Civil Legal Aid (Procedure) Regulations 2012 (S.I. 2012/3098) [to] extend and clarify the evidential requirements in relation to applications regarding… victims of domestic violence and child abuse.

On examination of the very modest amendments, it seems to me that one of the two amendments restricts – rather than ‘extends’ – the availability of domestic abuse legal aid. The headline ‘Government loosens restrictions imposed on domestic abuse victims following Law Society lobbying’ attributed to the Law Society on 8 July 2015 therefore seems incorrect. And the suggestion (see eg the Resolution press release) that the amendments provide that ‘victims can be assured of support throughout their case’ is not supported by the evidence of the new regulations. That ‘support’ – such as it was – was always there surely? All grants of legal aid are based on evidence (as is the case under the amendment regulations) ‘preceding the date of the application for civil legal services’ (see eg regs 33(2)(b), (d), (eb) etc).

Correctly Resolution warns that ‘further work needs to be done to protect sufferers of domestic abuse.’ From the very modest amendments two immediate questions arise:

  • What do the amendments actually say; and what do they mean (their significance is minimal)?
  • What do they mean to the ordinary reader who needs to understand whether s/he is eligible for legal representation?

The amendments and their effects

CLA(P)R 2012 reg 33(2) provides the ‘the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms’ (and has already been the subject of an unsuccessful application in the Divisional Court: R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)).

The Ministry of Justice press release on the changes (https://www.gov.uk/government/news/civil-news-change-to-domestic-and-child-abuse-evidence-requirements ) tells the reader that the result of the amendments is that from ‘17 July 2015 some evidence need not be re-examined before a final hearing if a certificate has already been granted earlier in the legal process’. This is achieved as follows:

  • relevant convictions for domestic violence or child abuse offences will remain valid evidence for 24 months or until spent – whichever period is longer
  • clarify the language about what is meant when describing evidence of a stay in a domestic violence refuge

(1)        Limitations on unspent convictions

So yes, CLA(P)R 2012 reg 33(2)(a) said that amongst ‘the evidence of domestic violence or risk of domestic violence’ which an applicant must provide is ‘a relevant unspent conviction for a domestic violence offence’. This requirement has been amended by addition of reg 33(2)(eb) as follows:

(eb) a relevant conviction for a domestic violence offence where B was convicted of that offence within the twenty four month period immediately preceding the date of the application for civil legal services;

It is unclear why this has been added six clauses after the provision to which it applies (if it does). More seriously, if anything the provision narrows the availability of legal aid, surely? Previously the conviction appears to have been for an unlimited period, whilst ‘unspent’; whereas now the conviction must be in the twenty-four month period prior to grant of representation.

(2)        No minimum period in a refuge

The twenty-four hour minimum period in a refuge is replaced by a new CLA(P)R 2012 reg 33(2)(i) and 33(3) definition: that accommodation in a refuge is no longer subject to a minimum period. That is the advance which these amendments represent.

Clarity of legal aid law

Lord Bingham’s first ‘sub-rule’ of the rule of law (set out in his 2006 lecture (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) and elaborated in his 2010 book Rule of Law) was:

First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

The assumption that legal advice will usually be available may be accounted optimistic in 2015. The need for clarity is even more pressing as a result. Given that the statutory provisions for legal aid in this area by definition are designed – or should be – for vulnerable and needy individuals already confronting a difficult and abusive life, surely the law-maker has a duty, in a democracy governed by the rule of law, to provide clarity in Binghamian terms.

LASPOA 2012 is a shamefully dense piece of legislation. Subsidiary legislation (eg here CLA(P)R 2012) only intensifies that density and thus the sham. And now we have amendment regulations which may not even be understood by the civil servants and lawyers who promulgate them.

It is not easy to find where in CCLA(A)R 2015 reg 2 the changes alleged by the explanatory note occur in the amendment regulations. When you find them (reg 2(6)), you must then go back to CLA(P)R 2012 (not amended on the government web site: http://www.legislation.gov.uk/uksi/2012/3098/regulation/33/made) and then to 2014 amendment regs (http://www.legislation.gov.uk/uksi/2014/814/regulation/2/made) to get the full picture. That is not easy, even for a lawyer whose job it is to understand these things. For an abused mother or partner surely it must be an impossible task?

If our law-makers themselves do not understand their own amendments to a complex private-public law scheme, how can those who hope to benefit from it? These regulations under a densely provisioned Act are surely – in themselves – of dubious legality? They have already been found to be misrepresented by Ministry of Justice and the Lord Chancellor: see R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (and see https://dbfamilylaw.wordpress.com/2015/06/10/lord-chancellors-guidance-on-exceptional-case-funding/ on the Lord Chancellor’s new Guidance).

Does lack of clarity for the intended beneficiary mean that s/he cannot properly obtain a fair trial (European Convention 1950 Art 6(1); and see https://dbfamilylaw.wordpress.com/2015/06/11/convention-compliance-of-legal-aid-exceptional-case-determination/)? Is the legal aid scheme itself illegal (Human Rights Act 1998 s 6(1))? (I only mention it: on this day 226 years ago Parisians started to pull down the Bastille. Could English lawyers ever succeed in asserting the lack of clarity and thus illegality of LASPOA 2012, and thus start to pull down its legal aid scheme?)

#CHILD SEX ABUSE – LIFETIME REPORTING RESTRICTION FOR SURVIVOR

Life-time reporting restrictions orders

Is the court entitled in exceptional circumstances to make a life-time reporting restrictions order (‘RRO’) to restrict publicity for the lifetime of a child, say a survivor of child sexual abuse? It so what types of facts might justify such an order?

In December 2014 in Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl (‘AB’). He held that he could make the order in his inherent jurisdiction on an application by AB’s local authority relating to the child sexual exploitation (‘CSE’) inflicted on her. His order included a RRO for AB to last till she was 18 years old, in August 2015. No RRO was made in respect of her assailants though whether such an order could, or should be made, was part of the court’s consideration in the December case.

In Birmingham City Council v Riaz, AB & Ors [2015] EWHC 1857 (Fam) (Riaz, AB), (24 June 2015) Keehan J considered an application, by the City Council with support from AB, that the reporting restrictions order should last for AB’s lifetime. The newspapers represented before Keehan J said they had no intention of reporting on AB nor intruding on her privacy; but they were concerned, as their advocate explained (quoted by Keehan J at [35]), at the exceptional nature of the RRO which the court was being asked to make:

… the concern is that for the court to make an order such as that requested would be an extraordinary, exceptional, and, we submit, unjustified extension of the court’s use of its jurisdiction, and an unwarranted and unjustifiable intrusion on and limitation of the public and the media’s rights to freedom of expression under Article 10. The concern of the PA and TNL is that if the court makes an order in a case such as this, it will extend the range of injunctions available to local authorities far beyond anything considered in [earlier cases]. An injunction would leave the press bound for the rest of AB’s life.

Jurisdiction

In Riaz, AB the first question for the court was, given the approach of AB’s 18th birthday, had the court any jurisdiction to continue the RRO? This resolved itself into whether the court had jurisdiction to make an order at all; and if so whether it should be operated in respect of AB.

In Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 Lord Steyn stressed the extent of existing statutory provision (cited by Keehan J at §[26]):

[20] There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.

Early on in his judgement Keehan J had referred to JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 in which, it might be said, the Court of Appeal had recently explained how, at common law, the open justice principle can be overridden (and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). A mother was concerned at her and her daughter’s loss of privacy following court approval of her substantial damages settlement. The Court of Appeal 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. The court concluded that the criterion for decision as to whether a RRO should be made was whether it was ‘necessary’ to derogate from the principle of open justice (§§[33] and [34]); and that in this type of case – ‘dealing with… essentially private business’ the claimant was entitled to a RRO. Generally such orders should be made for a protected party in a case such as that of JXMX, subject to the press having a chance to object in an individual case.

Keehan J sets out his view of the JXMX decision as follows:

[13] … the decision reflects the emphasis the courts now place on the need to accord due respect to the Article 8 rights of litigants, especially of children, young people and protected parties balanced against the Article 10 rights of the press and broadcast media. The position is encapsulated in the observation of Moore-Bick LJ when he said:

The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant’s identity.

I respectfully agree.

He considered the cases where RROs had been made to protect a new identity (Thompson and Venables, Mary Bell and Maxine Carr) (§§[14]-[18]) and to the age limitations – to 18 for any reporting restriction on a child in court proceedings – in Children and Young Person’s Act 1939 s 39 (R (ota JC and RT) v The Central Criminal Court and others [2014] EWCA Civ 1777). He drew attention (§[20]) to the fact the ota JC and RT case had led to a life reporting direction protection being granted for life to under 18 witnesses and victims in criminal proceedings (Youth Justice and Criminal Evidence Act 1999 s 45(2) and (3)).

Conclusion and reporting restrictions order

The passage from Lord Steyn’s opinion in Re S (above) had been cited to the judge by the advocate for the press. In response Keehan J drew attention to Lord Steyn’s concluding exception for ‘the most compelling circumstances’ (§[27]) for his being able to find further exceptions to the open justice principle. He went on:

[28] In my judgment, however, two matters are plain:

  1. a) a high priority is given by Parliament to young victims or witnesses in criminal proceedings and to the victims of sexual offences and of female genital mutilation; and
  2. b) as I repeat, the approach of the courts has advanced over the course of the last decade or so to protect the Convention rights of litigants in civil proceedings as most recently exemplified by the decision of the Court of Appeal in JXMX 

The judge held that he was entitled to make a life-time RRO, even though AB would no longer be a child for most of the period it covered. Should he do so in AB’s case?

In making this decision the judge must balance the private interests of AB against the public interest in freedom of expression. He addressed the public interests – as advocated by the press representative – as against AB’s private interests as follows:

[40] It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.

[41] What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.

[42] AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.

He concluded from this that these private interests of AB overrode any public interest there might be in press publicity:

[46] I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.

Public interest in victims being encouraged to come forward

Finally the judge emphasised the public interest of the importance of victims of CSE coming forward if they might be capable of being guaranteed life-time reporting restrictions (though each case will depend on its individual facts (injunction applications to be ‘determined on their own merits’: italicised passage below).

[47] I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

Each case will depend on its own facts: the public/private balance must be tested in each instance. However, if Keehan J is followed – and he explains why he considers that the common law in 2015 is with him – then children, who may justify continued anonymity (including survivors of child sexual abuse), can seek orders for restrictions of the reporting of their cases beyond childhood.