EX PARTE PYGMOSTIN BC; OR IS THE LEGAL AID AGENCY LIABLE?

Mossbound County Court, Court 7

It is a sullen afternoon in the county court sitting in Mossbound. Court 7 is in session, with a judge and an elderly man across the bench and bar. Mossbound’s is a new court and has absorbed and replaced four smaller courts in a largely rural area. First there was Munbyside court, a gruff grey little building, which has now re-opened as a Pound-saver. Alsatia County Court served a group of often lawless and inbred northern people. They are descended from Lorrainians who fled there from the 30 Years’ War. Their settlement was only named Alsatia early in the eighteenth century. The de-commissioned court building is now being squatted by unemployed criminal barristers and a number of their clients.

Pygmostin, is a small town whose occupants are famed throughout the county for their bright brash braces. Theirs is the only remaining court. It has been renamed Mossbound Combined Holistic and Civil Non-online Court Centre (MCHCNOCC: known by local lawyers as ‘Much Knock’). The local practice directions of its progressive circuit judge, run already to three alphabets and a fourth run though the alphabet, already at P (and none approved by the Lord Chief Justice) The judge does not permit I or (i) to be used (for which he has been commended by the Lord Chancellor personally). There are 90 practice directions of which 53 apply to family cases. Riderbound, a rambling northern town of mostly childless horse enthusiasts, makes up the fourth town. Its court building house a mediator’s co-operative. The co-operative is affiliated to a non-court dispute resolution service whose management committee is chaired by the progressive judge.

Another civil claim

David Jones (A) left home on public transport two days ago to travel to Mossbound in time for his appointment with the judge in Court 7 (court staff refused to re-list the case at 2.00 pm which would have saved Mr Jones one of his two overnight stays). In 2007/8 he wanted completely to rebuild and re-plant his back garden, which suffered from subsidence. He contracted with Rolling Stone Speedibild (B), one of the better known builders in Alsatia, to do the work. (He lives an 11mile walk from a bus line into Pygmostin). A has not paid B. B has sued A in the Mossbound court.

Both parties – ‘very sensibly’, says the judge – have agreed that Pygmostin Borough Council (‘PBC’) (C) should pay for Mr Jones’s garden. The judge has considered the draft order put up by A, has signed it an looked as though to release A. He thought he should say a few words: ‘No one is here from the council to say why the rate-payers shouldn’t pay; though I’ve seen an email which says that, absent rules, they have no power to pay. I disagree. I shall be robust. I’m sure they’ll find a good reason’ – he realised he did not know the opposite of ‘absent’ – ‘why it’s perfectly possible to pay. It’s an excellent idea. B can’t be expected to pay these bills. He is outwith much in his bank account….

‘So, let’s see your draft order again, Mr Jones: £38,755 with costs of £13,346 and interest at 11.75% from the date of the bill (7 years ago). That’s what you’ve agree the council will pay. Pygmostyn BC will therefore pay £93,040, payable in 28 days after the town clerk,… er, is that who it is? – after he or she receives my order.’

And will the Legal Aid Agency pay?

I’m not at all sure the law works in the way that the judge in Pygmostin court ordered. The translators in Suffolk County Council v The Mother and ors (reported as Re R (translation of documents in proceedings)) [2015] EWFC B112 HHJ Roberts, Family Court sitting at Chelmsford are in the same position as A. They have done the work. They must be paid. The non-English speaking parents (whose solicitors wanted to be able to pay for documents to be translated) are clear (they get no capital letter here). In contract terms it is their solicitors who are in the position of B and will therefore have to pay the translator’s bill. The article at http://suesspiciousminds.com/2015/08/25/lost-in-translation/#comment-11798, and HHJ Lynne Robert say that I am wrong.

Legal Aid Agency (‘LAA’) is C. Like A, neither the LAA nor the council can –m in law and as far as I can see – be made subject to an effective order that they should bay. There is no obvious reason why LAA has to pay on HHJ Lynne Roberts’s order? If a judge’s order has no foundation, in law, then – as for most of us who try to walk on water – it sinks. If I were acting for the lawyers for the parents, I would not advise the solicitors to issue a civil claim against LAA if they don’t pay. The LAA defence to the claim is easy to predict, starting with LASPOA 2012, which – with its supporting regs – did not feature expressly in the judges’ reasoning (and see http://www.familylaw.co.uk/news_and_comment/care-proceedings-bundles-a-duty-to-pay#.VdxhTPmqqko).

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A CHILD LAW QUESTION AND A ONE-FAMILY-BREAKDOWN-FILE RULE (Part 1)

Same children, same family breakdown: why different hearings?

I have been asked: why do family courts often list children arrangements hearings and financial provision for, or involving, the same children before different judges – sometimes even on different files. It is the same children. It is and similar children law welfare principles – money or child arrangements – which guide the courts.

The children issues and whether their carer parent can keep their home involves the same children and often similar facts; so why not all before the same judge? Does not separate hearings and different judges offend against the overriding objective in FPR 2010 r 1.1, namely:

 

1.1 The overriding objective

(1)    These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a)ensuring that it is dealt with expeditiously and fairly;

(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)ensuring that the parties are on an equal footing;

(d)saving expense; and

(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

I will try to answer these questions by first setting out what the statutory underlay for all this is; for this area of law is heavily geared to Acts of Parliament. (The exception to this (ie (5) below) is where a couple were not married or in a civil partnership and their property is in issue (cohabitation law). Here, by contrast, Parliament has been unable to work out what – in law – to do about such families.) Then I shall deal with case management and the definition of issues, so critical to progress with family proceedings.

Statutory provision

Parliament says:

  • Children Act 1989 (CA 1989) s 1:

(1)  When a court determines any question with respect to –

(a)the upbringing of a child; or

(b)the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

  • Child Support Act 1991 (CSA 1991) s 1:

(1) For the purposes of this Act, each parent of a qualifying child [ie of which they are both the natural parent, or an adopted child] is responsible for maintaining him.

  • Matrimonial Causes Act 1973 (‘MCA 1973’) s 25(1), and Civil Partnership Act 2004 (which for our purposes mirror one another, so reference will be made only to MCA 1973):

(1) It shall be the duty of the court in deciding whether to exercise its powers [to adjust family property (eg the parties home), award lump sum payment or maintenance (called periodical payments) and pension adjustment orders] and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

  • Children Act 1989 Schedule 1 (‘Sch 1’): provides money only for children, but not where parents are getting divorced or they were never married, but on similar principles to MCA 1973. Since CA 1989, by definition, deals with welfare of children the welfare-first rubric in MCA 1973 s 25(1) is not necessary.

 Exception: equity and a the single parent

  • Parents not married to each other: cohabitation law is not statutory and makes no specific provision for children. Capital of married couples can be adjusted under MCA 1973 (and this may include for a home for a child); but the same child, if his/her parents are unmarried, will depend on a scramble of laws (called ‘equity’) (‘equitable’) which may or may not leave him with a home: more likely yes, whilst the child is dependant, but often not once the last child has left home.

But, but, but: on a relationship breakdown the couple’s children will be the same children under each set of statutory provisions. So, why do we have different judges and the Child Support Agency for those same child(ren)? Why not one relationship breakdown file for all, and one judge to dispose of trial issues? ‘Why’ indeed.

One relationship breakdown – and one set of proceedings?

This article will look at (1) what is likely to happen now under the present procedural rules; (2) what could happen under the same rules to make relationship breakdown easier for children and their parents; and (3) – a bit of law reform dreaming: what should happen, so that the law and its practitioners can try to make an already bad situation as little worse as possible. This will be in Part 2 (to follow).

Broadly speaking the law relating to children is the same whether parents are married or not. CSA 1991 applies to a parent with care and a non-resident parent. CA 1989 Parts 1 and 2 (what family lawyers call ‘private law’: ie child arrangements) is concerned with parents and others with parental responsibility. And CA 1989 Sch 1 deals with finances as between parents (married or otherwise). MCA 1973, so far as it deals with finance for children, can only provide if their parents are married.

Child support

CSA 1991 skews the whole family finance set up. Mrs Thatcher felt that too many men were getting away with not paying for their children; and that lawyers had failed to fix sensible amounts to be paid and to enforce what was due (if not paid). ‘Something must be done’ she said; and it was – but what a mess….

The scheme is run by Department of Work and Pensions and is based on administrative, not family, law. Its enforcement is partially based on 1980s poll tax enforcement. And, truly wild to tell: the same parents can be involved in four first instance courts/tribunals; and that still does not allow for divorce and other cases in the Family Court. There is no way, as the law now stands, that DWP will permit their case (as they see it) to be argued alongside other family proceedings; or even in the same court. And most district judges are too frightened – because mostly ignorant on the subject – to take on the DWP and their lawyers (proof of this statement is available).

The law, family breakdown and child arrangements

Child arrangement proceedings (formerly custody and access, then residence and contact: Children Act 1989 Parts 1 and 2) are likely to be dealt with in an individual set of proceedings, and only exceptionally before the same judge on the same day.

Later a district judge – almost certainly a different judge – will deal with money. Maintenance cannot be dealt with on a contested basis by this judge (CSA has a monopoly on this), unless the parties agree.

Family Procedure Rules 2010 (‘FPR 2010’) – the rules which cover family proceedings – put nothing in the way of one court dealing with all issues concerning children (other than for child support under CSA 1991: CSA 1991 s 8(3)). There is no reason therefore why all children proceedings couldn’t be in one court and dealt with throughout by one judge. That judge would be in a position then to say that, for example, children proceedings should be separated off, perhaps be dealt with first. It all depends on the procedural needs of each family, with welfare issues (mostly of children: r 1.1(1): set out above) coming first.

Definition of issues: agree what you disagree

It truly is as simple as that. A family judge defines the issues (FPR 2010 r 1.4(2)(b)). It is a duty, says FPR 2010 r 1.4, yet the judges rarely define properly what is in issue. The one thing which parties to court proceedings must be able to agree is what they do not agree (eg about children or who should have the family home). These are then the structure of what the court is being asked to do (‘the issues list’). In many simpler cases, the list will probably fit on a side of A4.

If a dispute remains about arrangements for a child (where s/he is to live; when to be seen by the non-carer parent), then properly case managed the judge can consider listing all issues on one day before one judge; or on different days – but still, with the same judge (if available). Often it may be better to take money and children issues separately; but at least the court and the parties should consider whether one trial will work (and see FPR 2010 r 1.4(2)(j) (below)).

Overriding objective

The overriding objective is a ‘code’, a set of principles analogous (say) to a person’s manners or a ‘code of honour’. Manners guide the way you behave but are not rules in themselves. The overriding objective here is closely based on aspects the jurisprudence of European Convention 1950 Art 6(1) (which requires courts to provide a fair trial (dealing with a case justly: FPR 2010 r 1.1(2)). Ensuring parties are on an ‘equal footing’ is called ‘equality of arms’ in Convention jurisprudence; and so on.

Allotting a sensible share of ‘the court’s resources’ drives the one session-for- children-of-one-family-breakdown-and-their-money hearing demands a single judge for the same family, surely? The parties (a) they must help the court to further the overriding objective (FPR 2010 r 1.3) and (b) the court ‘must… actively’ manage cases. The judge must identify issues (as already mentioned) and, says FPR 2010 r 1.4(2)(j), s/he must deal ‘with as many cases as [the court is able to] on the same occasion’.

These are judge’s ‘duties’. They are like doing the washing up when it’s your turn, or not being late for work: they are things that the judge ‘must’ do. If I ruled the family law world, I’d make all family judges learn r 1.4(2) by heart; and the rule (italics refer to the two paragraphs mentioned in this article) says:

1.4 Court’s duty to manage cases

(1)  The court must further the overriding objective by actively managing cases.

(2)  Active case management includes –

(a)setting timetables or otherwise controlling the progress of the case;

(b)identifying at an early stage –

(i)the issues; and

(ii)who should be a party to the proceedings;

(c)deciding promptly –

(i)which issues need full investigation and hearing and which do not; and

(ii)the procedure to be followed in the case;

(d)deciding the order in which issues are to be resolved;

(e)controlling the use of expert evidence;

(f)encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(g)helping the parties to settle the whole or part of the case;

(h)encouraging the parties to co-operate with each other in the conduct of proceedings;

(i)considering whether the likely benefits of taking a particular step justify the cost of taking it;

(j)dealing with as many aspects of the case as it can on the same occasion;

(k)dealing with the case without the parties needing to attend at court;

(l)making use of technology; and

(m)giving directions to ensure that the case proceeds quickly and efficiently.

I’d test the judges on their knowledge at least once per month. Any judge who failed… Yes, well – I won’t ever rule the family law world…

PROTECTING VULNERABLE PARTIES AND WITNESSES IN COURT

Letter to Editor, Family Law

Step one: work out how to pay your ‘intermediaries’

In ‘Safeguarding measures, intermediaries and vulnerable witnesses: foot notes from the trenches’ Gillian Geddes (‘GG’) discusses the proposed changes to Family Procedure Rules 2010 (‘FPR 2010’). She was writing before the draft rules – namely Family Procedure (Amendment No X) Rules 2015 (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) were out. Their aim is to amend FPR 2010 by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence (‘Pt 3A’; and see ### update on this by David Burrows at [2015] Family Law ###).

GG deals only with a party whose participation is ‘likely to be diminished’ (as the draft rules term her client’s category: see Pt 3A r 3A.4):

Court’s duty to consider how a party can participate in the proceedings

3A.4.—(1) The court must consider whether a party’s participation in the proceedings is likely to be diminished and, if so whether it is necessary to make one or more directions in paragraph (2) to assist the party. ..

GG gives an example of one such party whose participation is diminished by her own disabilities. This must have been conducted under the current FPR 2010 case management rules (ie FPR 2010 rr 1.4, 4.1 and 12.12). GG’s article is illuminating on all this and shows how, already, the common law can respond to the sensitive handling of vulnerable witnesses. GG deals with an intimidated party’s ‘participation’ where she is said, according to Pt 3A, to be ‘diminished’. Alongside (1) intimidated parties, Pt 3A deals also with (2) children: their participation in proceedings and (3) their views; and (4) witnesses said to be ‘intimidated’.

The main part of GG’s article is to explaining how the ‘intermediary’ (per Pt 3A.7(1)) may be intended to work, by illustration from one case. Like FPRC she does not consider the effects on common law principles of what is proposed. Common law – and thus statutory – changes are inevitable.

FPRC’s powers are limited by Courts Act 2003 ss 75 and 76. The ‘measures’ proposed are likely to require primary legislation (and see eg closed material procedures, special advocates and public interest immunity: all implied by r 3A.7). Grubby things like how and by whom ‘intermediaries’ are to be paid, if by HMCTS, will certainly require primary legislation. Money and the implied in-roads into the common law (see discussion of this in eg Attorney General v Leveller Magazine Ltd [1979] AC 440 and Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948) are clearly outside the rule-making powers of ss 75 and 76; and thus FPRC is left stranded.

‘Duty’ on legal representatives and Jaffray rule

My first worry relates to drafting detail. GG says as a fact that it is proposed that the overriding objective is to be amended to emphasise what she perceives as a new ‘duty’ on ‘legal representatives and litigants in person (sic)’ to identify the ‘intimidated’ (how the rules describe ‘vulnerable’, of parties and witnesses. As I read the draft rules, it is – on the contrry – the court which has this ‘duty’ (rr 3A.4(1) and 3A.5(1)). I will leave research into whether the FPRC can itself create extra professional duties for now; but I am as certain as I can be that for a rule committee to create duties for subjects of the Crown (ie LiPs) without primary legislation would be of dubious vires. I will say no more say that the Jaffray rule surely applies here (Jaffray v The Society of Lloyds [2007] EWCA Civ 586: rules cannot change the jurisdiction of the court, still less the law. Rules can only regulate procedure which delivers the law and justice.)

GG’s sources for her assertion are not stated, so pending revelation of the sources, this ‘duty’ must be treated with scepticism.

Extension of overriding objective

The FPRC meeting of 15 June 2015, when consultation and amendment drafting was fully considered, say of plans for overriding objective only:

Overriding objective

Judge [HHJ] Raeside suggested that FPR Part 1 (Overriding Objective) be adjusted so that the duty to deal with cases justly and fairly included reflecting the participation and involvement of children and vulnerable witnesses.

Lord Justice Ryder thought that the way the proposed rules had been drafted obviated the need to delve into the overriding objective. However, he considered it entirely reasonable to raise the issue on consultation.

The Chair observed that, although the overriding objective referred to the court having regard to any welfare issues involved, there was no actual mention of children. He suggested a quick proposed amendment to the overriding objective be drafted before consultation.

The paper which accompanies the consultation Draft Amendments to Family Procedure Rules  http://www.familylaw.co.uk/system/redactor_assets/documents/3209/Draft_Amendments_to_Family_Procedure_Rules_consultation_paper.pdf, in one of its specimen consultee questions on reads:

The Committee recognises that, as currently drafted, the overarching [sic] objective [at FPR 2010 r 1.1) does not refer to children. Some committee members have raised concerns that this is an omission and would like to see the overriding objective updated to reflect the need to consider children within proceedings. (a) Should the overriding objective be amended so as to emphasise consideration by the court of participation by children in proceedings?

This raises two separate points:

  • Law – Children Act 1989 s 1 (not mentioned here) seems to cover the law; and, for that matter, whatever a ‘code’ like r 1.1 says, the law remains the starting point.
  • Procedure – a child’s ‘participation in proceedings’ is the issue here; and that surely should be considered is at r 3A.3 where it belongs. It cannot be left to the aspirations of r 1.1 principles?

Intermediary and participation of a party in proceedings

The main part of GG’s article is a discussion of one ‘intermediary’ case (per Pt 3A r 3A(7)); but, in the current state of legal aid law and family proceedings practice, real questions on intermediaries and their funding must precede the lengthy discussion introduced by GG.

The term ‘intermediary’ and what they are to do is one of the ‘measures’ available to the court in (Pt 3A r 3A.7(1)(d) and (e)) under Part 3A. What an intermediary actually is, how s/he is defined and what s/he is expected to do is not defined. Much is covered already in various statutory, common law and regulatory guises. Why does specific provision need to be made for family cases? Well, of course, it doesn’t. All it does is to make life more complicated for courts and parties, where proper case management training for judges might resolve a lot of the points. They already have their required duties and a set of powers in FPR 2010 rr 1.4 and 4.1. How much of what is said of case management for adult witnesses and parties in Pt 3A is outside those case management rules?

Whatever ‘intermediaries’ are, most of them will require to be paid. Only three weeks before the FPRC meeting the Court of Appeal poured a heavy shower on Lord Chancellor funding (Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015)). On the facts of that case ‘help for a party … to be questioned in court with the assistance of an intermediary’ (r 3A.7(1)(e)) cannot be funded by the Lord Chancellor (eg under Matrimonial and Family Proceedings Act 1984 s 31G(6), mentioned in r 3A.6(1)(i) as a case management matter).

Funding of intermediaries

In Re D (A Child)(No 2) [2015] EWFC 2, Sir James Munby P gave ‘guidance’ as to funding, says GG. Yes, he did; and in Suffolk County Council v The Mother and ors (reported as Re R (translation of documents in proceedings)) [2015] EWFC B112 HHJ Roberts, Family Court sitting at Chelmsford made an order for LAA funding (but – crucially, I fear – the judge overlooked the fact that the payer party (ie Legal Aid Agency (‘LAA’)) was not a party to the process and thus that her order (as far as I can see) had no foundation; and see eg http://www.familylaw.co.uk/news_and_comment/care-proceedings-bundles-a-duty-to-pay#.VdkT6vmqqko)). On a related point: in Re M (A Child) [2015] EWFC 71 (04 August 2015), Sir James Munby P explains briefly how a vulnerable party was not even spotted by the court (or her advisers?) for (say) EDF legal aid funding (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)); and she was unable to pay the costs of her proceedings. If, as GG says, the Court of Appeal did not overrule Sir James’s guidance in Re D – meaning, in law? – he does so himself in Re M (§[12]).

The scheme will not work if it is not funded. I beg everyone to put this in bold across their response to the consultation. Detail of what is needed for funding and what statutory changes this requires – in my opinion – will be set out in detail on my blog https://dbfamilylaw.wordpress.com/; but in the meantime all practising family lawyers should please try to learn by heart the words of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) at §[40]. Of the classic intermediary – special advocates (on instructions from the Attorney-General (Attorney General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (FCP at 2923 is one of the few printed sources of this), closed material procedures eg where a witness might be ‘diminished by a violent parent/partner on disclosure of documents or police information (see eg Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam), [2010] 1 FLR 1048, McFarlane J); and limited forms of public interest immunity (but see Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050 (30 July 2014): of all this FPRC says nothing. Anonymity may be implied by r 3A.7(1); but how much notice have FRPC taken of the issues which that calls into question, even in private proceedings: see eg Attorney General v Leveller (above) with its tight limitation by our open justice principle? What of the ideas put up by Lady Hale in the classic recent Supreme Court vulnerable witness case: Re A [2012] (above)?

And so the funding questions go on. A reply from the FPRC secretariat on what the Committee considered on costings, and of party funding, is awaited; and in absence of that a FoI request will be made. GG does not cost the lengthy exercise she describes nor tells us by whom the case was paid; or, indeed, whether the expenditure on lawyers was covered.

Costing of new legislation

Most statutory schemes must be costed. The consultation document says:

[10] The Committee acknowledges that court rules cannot provide a requirement or entitlement to funding as this is within the competence of Parliament. In addition the Committee has had some general advice from the MoJ and HMCTS as to what provisions are available. In relation to eligibility the rules have been drafted to avoid situations where a child or vulnerable party/witness does not get assistance as a result of being outside a more tightly drawn set of criteria….

I can see no evidence in the minutes of the committee being aware of any contact within Ministry of Justice with LAA on all this. FPRC considered endorsement onto the case management order of the court’s reasons for any decision (not what the X version says). A piqued Sir James is minuted as saying: ‘Orders should also record where a measure was needed but resources were not available to provide it.’ The draft rules do not say this either.

The draft is opaque to say the least. The minuted may explain a little what the FPRC members though they were doing; for the present draft r 3A.11(2) says:

(2) If a direction for a measure is considered by the court to be necessary but the measure is not available to the court, the court must set out in its order the reasons why the measure is not available.

It will be interesting to see what the final rules say. Will Sir James’s comment find its way into a practice direction, or someone’s case management judgment? And how is the court to know that resources are not available, especially in a Children Act 1989 Part 1 and 2 (‘private law’) case?

Without guaranteed funding – and this requires co-operation from the Lord Chancellor and the Treasury – I cannot see the intermediary aspect of all this taking off. The VW&CWG started by expecting to make one new rule to cover all this. Now they have 11. They need a good bit more, to help those whom family courts should be helping; and they need primary legislation.

The present draft will not butter many intermediaries’ parsnips (especially where they are lawyers). And without funding, most of the ‘measures’ (Pt 3A r 3A.7(1)) which involve intermediaries will remain still-born (save for Munby P’s endorsement of ‘no money to pay an intermediary’ on his order). That helps no ‘intimidated’ witness.

A clear definition of what an intermediary is, some statutory provision to confirm departure from the common law and open assertions on state funding: this would be a good start. It remains a ‘start’, since on the sine qua non of funding, FPRC cannot be said even to have reached ‘Go’.

LEGAL PROFESSIONAL PRIVILEGE: EXCEPTIONS REVIEWED

Exceptions prove the absolute rule

Under the dramatic headline – Professional secrecy in jeopardy – the Law Society Gazette of 17 August 2015 published a comment by Jonathan Goldsmith (consultant and former secretary-general at the Council of Bars and Law Societies of Europe and well-known to LSG readers) on R v Brown [2015] EWCA Crim 1328 (29 July 2015). In that case, the Court of Appeal (Fulford LJ sitting with Holroyd and Singh JJ) reviewed legal professional privilege (LPP) in highly unusual circumstances (see especially in §§[20]-[41]). The case does not, in my view, justify the headline nor Mr Goldsmith’s comments on an ‘attack’ by the Court of Appeal ‘professional secrecy’ (his term for advice privilege, the aspect of LPP here under review).

Indeed the Fulford LJ stresses that it is only because you have a rule which is absolute that narrow exceptions may need to be found to it (not mentioned by Mr Goldsmith). In McE v Prison Service of Northern Ireland [2009] UKHL 15, [2009] 1 AC 908 Lord Carswell (quoted in full in R v Brown at §[35]) explained this:

[102] … The limits of such possible exceptions [to the LPP rule] have not been defined and I shall not attempt to do so, but they could not exist if the rule against surveillance of privileged consultations were absolute.

R v Brown provides a tiny category of instances (see below) where a court or a professional with a confidence or material covered by LPP may breach that confidentiality. For exceptions-prove-the-rule reason the case and its narrow application should be welcomed by the legal profession, not denigrated. Further, it may fairly said, the case thereby illustrates a welcome controlled adaptability and realism in the common law; and I say that as a lawyer who yields to none in my support for the fundamental importance of the right which LPP protects.

Brown: the case

For the background to Brown I am grateful to, and quote, the Gazette article:

The facts are highly unusual. Mr Brown was a patient at Rampton Hospital serving two life sentences for attempted murder. There, he hid a weapon and attacked another patient, leading to his third conviction. He appealed against the last on the grounds that he was not able to consult his lawyer in private during the trial because throughout he was shackled to two nurses. Before the trial, he had confessed to a member of staff that he had contemplated killing his solicitor, but the chief concern which led to his shackling during the trial is that ‘there was a real risk that the appellant would use the conference with his counsel in the courtroom at Nottingham Crown Court to cause himself serious injuries or to kill himself’. He had a long and sophisticated history of self-harm. As the judge said, these are ‘rare circumstances’.

The judgement reviews some of the recent cases on the absolute nature of LPP (see eg R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513) and points out that it may only be overridden by express or necessary statutory exception (see eg R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563).

The ‘iniquity’ exception

The court explained the iniquity exception to the LPP confidentiality rule (per R v Cox and Railton (1884) 14 QBD 153, Stephen J). It then summarised the central issue in Brown:

[35] … Whether the circumstances of this case means that it falls within the “iniquity exception” to the usually inviolable right of an individual to communicate confidentially with his lawyers. This conclusion would involve an extension – albeit significantly limited in nature – to the principle established in Cox and Railton.

The court added to this summary an emphasis on the distinction between ‘use’ of confidential information by the person who become privy to it; and the ‘consequence of the presence of someone who was able to overhear what was said’ (the factual basis of Brown):

[35] … We note there is a clear basis for distinguishing between an attempt to use the content of privileged conversations in evidence, on the one hand, and the fact that the discussions were not entirely private, on the other. In R v Derby Magistrates’ Court, Ex p BLord Taylor and Lord Nicholls both focussed in their speeches on the possible use [judicial underlining] of evidence consisting of what had been said between the legal adviser and his client. Lord Hoffmann, in a similar vein, in Regina (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax and another [2003] 1 AC 563 when stressing the importance of right to confidentiality, observed at paragraph 7 “[…] advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. […]” These and a number of other similar authorities did not address the discrete issue of the consequence of the presence of someone who was able to overhear what was said as distinct from the use that might be made of privileged communications in evidence. (emphasis added in italicised passage)

Four exceptions to LPP

There are two ‘recognised common law’ exceptions to LPP, said the court:

[36] Currently there are, therefore, two generally recognised common law qualifications to the inviolable nature of legal professions privilege. First, the privilege does not apply if the communications are intended to further a criminal purpose (the ‘iniquity exception’). Second, statute can defeat the privilege if express words are used or necessary implication indicates, as demonstrated in McE v Prison Service of Northern Ireland: the privilege was overridden by the Regulation of Investigatory Powers Act 2000.

To this I would add a third – W v Egdell [1989] EWCA Civ 13, [1990] Ch 359 (not considered in Brown – and the careful explanation by Bingham LJ of the circumstance where the confidant professional (eg a lawyer or, in the case of Dr Egdell, a consultant psychiatrist) may override LPP where s/he feels a report to a relevant authority (eg police or child protection) is justified ‘in the interests of public safety and the prevention of crime’.

R v Brown provides a fourth exception, formulated by the court (especially in the italicised passage below) as follows:

In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step.

It is a very narrow exception. It was justified and fully explained by the Court of Appeal. As Egdell and Brown shows, each case depends on very specific facts. Legal principles will only apply to a very rarefied batch of highly unusual circumstances; and only then can a professional ‘secret’ be in jeopardy.

Postscript – the Court of Appeal gave no real thought, and Mr G none (it seems), to the duty of confidentiality of the nurses. They may have heard what was to be said by Mr Brown to his lawyers, and – yes – they may be employed by the state, the prosecuting authority; but to whom do their duties of confidentiality lie. I only ask?

CLARITY FIRST: DEAR TRANSPARENCY PROJECT…

Clarity first

Dear Transparency Project (http://www.transparencyproject.org.uk/)

I admire what you aim to do; though, as you know, I think your title – ‘transparency’ – is a euphemism. Like the President of the Family Division I think you look through the family law procedural telescope from the wrong end (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/) and think that, because it is family proceedings they must be held in private (see discussion of the illegality of Family Procedure Rules 2010 (‘FPR 2010’) r 27.10(1) (below)).

All family courts, like any court in England, in law must be open, subject to certain well-known exceptions (the most obvious being children law, which – I entirely understand – takes up a significant proportion of the work of family courts). Privacy is the exception, and must be justified. This has been explained time and again by the judges, most recently in eg A v British Broadcasting Corporation [2014] UKSC 25. Family lawyers (backed up, to their shame, by their failure to challenge eg FPR 2010 r 27.10) seem to think they are immune from the rule of the common law.

The modern view amongst family lawyers is, entirely correctly, that there should be ‘transparency’. Courts must be open. The press and public must be allowed in – the open justice principle (OJP) – save in the very small number of exceptions identified in Civil Procedure Rules 1998 r 39.2(3) and explained in such cases as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 through to A v British Broadcasting Corporation [2014] UKSC 25, and any number of high authorities before, since and in between. The OJP rules: Kennedy v The Charity Commission [2014] UKSC 20. And most of these exceptions are in the range of family proceedings (though the recent case in which the Court of Appeal explained the rules concerned a child in civil court proceedings: JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/).

Time to clean up the kitchen

But first, family lawyers, would it not be best if we look around at the kitchen into which the press and public are being so earnestly invited. I enter this caution, not because I do not agree with the OJP, subject to the important exceptions referred to in the cases above. I suggest caution because I fear that the public may be shocked by the grease and grubby black bugs it finds hidden away in the family court kitchen. Its procedural larders hide a variety of illegality and lack of clarity grimes over many parts of its stone-flagged floors.

If I ruled the family law world I’d want to be seen to be sorting out these failings in the family law system as I opened it up – according to what I understood to be the law – to the press and public. I would want to see, not that the substantive law on which it is based is changed – that is a law reform project for another day; but to see that its procedure and administration was lawful and expressed in clear terms.

Illegality and unlawfulness

I use ‘illegality’ in the sense it occurs in administrative law. Lord Diplock in House of Lords characterised it as one of the ‘grounds upon which administrative action is subject to control by judicial review’, that is the foundations of testing the vires (powers of administrators) of public bodies (Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 [1985] AC 374):

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.

By ‘clarity’ I mean – er – ‘clarity’ (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/); or, more especially, that a law text is capable of being understood by the averagely intelligent layperson (‘AILP’). I do not mean that a text is reduced, like Orwell’s Newspeak, to its lowest common denominator. I trust most readers to be able to read a dictionary. An easy example of this is the change from garnishee to ‘third party debt order’.[1] Both start as meaningless, I suspect, to most lay readers, but I bet that most dictionaries will have ‘garnishee’ and a definition; but not a definition of ‘third party debt orders’. Being a composite term, it is likely that TPDOs will be hard to define from most dictionaries.

Clarity in a text does not mean that a reader should be patronised. It is a matter of good manners and common sense; and for lawyers it means respect for the rule of law, and of lawfulness. Lack of clarity is part of the lawlessness of family law procedure, so I will take ‘clarity’ first as a general subject, and then return to other aspects of illegality.

Clarity

The FPR 2010 rule-makers (the Family Procedure Rules Committee (FPRC)) derive their powers from Courts Act 2003 ss 75 and 76. It has no powers outside those provided to it by ss 75 and 76. Section 75(5) requires FPRC to exercise its powers to make rules –

(5) … with a view to securing that—

(a) the family justice system is accessible, fair and efficient, and

(b) the rules are both simple and simply expressed.

This is a highly subjective test; but to approach an understanding of it, it becomes necessary to define the AILP. Have FPRC done that? I doubt it. It is a test family lawyers must undertake soon. Till then, take for example, the proposed amendment as to FPR 2010 (intended as Part 3A). These amendments are intended to provide for the participation in family proceedings of children and ‘vulnerable witnesses’ (and see eg  http://www.transparencyproject.org.uk/guest-post-by-david-burrows-vulnerable-individuals-and-children-in-family-proceedings/ and http://www.familylaw.co.uk/news_and_comment/draft-rules-for-vulnerable-persons-in-family-proceedings#.VdDG8_mqqko). I defy most readers to understand the draft. Even the term ‘vulnerable’ is not defined; and some of the language is needlessly ponderous.

And do the rule-makers seriously expect the subjects of the draft – ‘vulnerable’ individuals and older children in family proceedings – to understand them? If they do, I fear they have failed my common sense and good manners test.

To make sense of s 75(5) an imaginary reader must be defined. Any text which is not regarded as ‘simple’ to him or her is unlawful: that is the statutory criterion. It is the law. It is not a sort of voluntary extra for FPRC to have in mind or not, according to the prevailing mood of the committee membership.

The importance of a clarity test, in more abstract terms, was explained by Lord Bingham as the first rule of his ‘Rule of law’ (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): namely that –

… 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.

That was in pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 days. I wonder if Lord Bingham’s assumption that legal advice should always be available is tenable today? If so the need for clarity only becomes the more pressing still.

I doubt that much of family law procedural law is ‘simple’, ‘simply expressed’ (s 75(5)) or ‘intelligible and clear’ (in Lord Bingham’s terms). If that is the case then all provisions which are not ‘clear’ are outside the law as set down in s 75(5). Each of those not-‘simple’ rules are a cockroach in the family law kitchen into which the public is being welcomed. Cock-roaches should not be in any kitchen, whether or not it is open to the public.

Unlawfulness

Let’s assume, for now, that the rules are all set down in clear language. Even then, I believe, there are a number which are unlawful.

The easiest to explain is that on which the Transparency Project is based, namely FPR 2010 r 27.10. The majority of family lawyers seem to accept that r 27.10 somehow represents the law. Under the heading ‘Hearings in private’ the rule starts: ‘(1) Proceedings to which these rules apply [ie the vast majority of family proceedings in family courts] will be held in private, except…’; and then two exceptions are set out: that the court otherwise orders, or that another ‘enactment’ (in law that means statutes, rules, regulations and practice directions) ‘provides otherwise’.

Only eight years before FPR 2010 came into effect the Court of Appeal in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 took a lot of trouble to explain why proceedings under Family Law Act 1996 Part 4 (ie ‘family proceedings’ in terms of r 27.10) were public, certainly to the extent of release to the press of documents arising in them. For family lawyers rules on this subject are governed by the common law (best found as codified in Civil Procedure Rules 1998 r 31.21).

It is basic law that a rule, like r 27.10, cannot override the law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). The law is (for family lawyers) still the common law and as explained in Allan v Clibbery (above). Rule 27.10(1) cannot reverse the Court of Appeal decision. It is blatantly outside the law, yet it remains part of the rules made by FPRC.

FPR 2010 rr 9.14(4) and 9.16(1) (no disclosure save by Form E or as directed by the court) are so obviously unlawful in the light of MCA 1973 s 25(1) and (2) as explained by the House of Lords Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813, that no one takes any notice of the two provisions. They should not be there; and that they are ignored is not a good advertisement for rule-making, and another cockroach in the kitchen.

A letter written by one spouse (or their lawyer) to the other in an attempt to settle a case (normally confidential as between the two of them under without prejudice rule immunity (WPRI); and known as a Calderbank letter, after a Court of Appeal case) can be shown to the court when it comes to costs. The aim is to show reasonable the spouse who sent the letter has been in his/her attempts to settle a case. FPR 2010 r 28.3(8) seeks to reverse this process and to make it unlawful. This may breach principles of public policy – can a rule change ‘public policy’: I only ask? – as set out by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. That case said WPRI was ‘founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish’. The case of Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586 explains how this works in the case of costs. Rule 28.3(8) is of dubious legality. No family lawyer, as far as I know, has challenged that legality (eg under principles set out in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143).

Of cockroaches and grease in the family law kitchen

So, my friends, before too much fuss about letting the press and public in is made, it would surely be worth trying to clean up the procedural law kitchen. Illegality cockroaches and lack-of-simplicity grease must go. I would make clear and fully intelligible to the AILP the texts – rules and practice directions – on which family law procedure is based (I leave statute law for now). In doing so I would have Lord Bingham in mind and keep a careful eye on Courts Act 2003 s 75(5).

In doing that, I would make certain that every rule in FPR 2010 was in accordance with the law (statute and common law). Procedure serves the law. It is therefore necessary first to define the law and then to ensure that procedure follows it. It is Parliament and, failing that, the judges, who together make the law; not (as Dicey explained) civil servants and administrators (such as FPRC).

[1] See ‘Does a bell toll for garnishee’ [2002] Family Law David Burrows

CROSS-PETITIONS: A RULE-MAKERS’ CONTROVERSY

Primary law and pleading: the point of a family law needle

How varied is the life of the family law commentator: yesterday it was the very important subject of child sexual exploitation and sexual risk orders (https://dbfamilylaw.wordpress.com/2015/08/12/sexual-risk-orders-and-the-inherent-jurisiction-in-children-proceedings/) – truly the sharp and most pressing end of a family lawyer’s practice. Today family law finds me grubbing in the minutiae of divorce pleadings and matrimonial causes cross-petitions, with a nod to constitutional law reform (does the dictat of a court counter clerk (accompanied by a Ministry of Justice form) or the will of Parliament take priority?).

Only family lawyers concerned with procedural niceties could conjure up the controversy considered in this note. A controversy, however there is, in a dense and mostly ignored part of the family law procedural jungle: does a respondent to a divorce petition still have the right to file an answer with cross-prayer to a divorce petition; or is the former right to cross-petition hitherto enjoyed by a party to divorce proceedings (or other ‘matrimonial cause’) somehow revoked by the silence of Family Procedure Rules 2010 on this subject?

Traditionalists, who believe in the primacy of law (ie statute law and the common law (‘primary law’)), say the long-standing right to file an answer and cross-prayer to a divorce petition subsists. The modernists – not perhaps encumbered by the disciplines of adherence to primary law – say no: if the rules are silent and Ministry of Justice counter-staff and a court form says so (Form D8B: relevant text below) then, they say, the cross petition disappears. Thus does a debate emerge, on a subject that is of only obscure interest (but which can cost the unsuspecting member of the public who is taken in an unnecessary £655: more if fee changes proposals come in).

The debate may be the more absurd still. A brief reading of the relevant rule in the former family proceedings rules (ie Family Proceedings Rules 1991 r 2.12), discloses no mention of cross petitions or cross prayers either; yet plainly they had a full and lively existence under the old rules and for over a century before that.

A number of immediate practical questions present themselves:

  • First the obvious point: that if FPRC and the modernists are correct, the MoJ receives an extra £410 if a separate file must be opened; and when a decree is granted on the second petition (P2) the first £410 + £245 (assuming the respondent in P2 is advised to file an answer – ie £655) is presumably written off for almost no financial benefit to either or both parties.
  • If no answer is filed (at an expense of £245) how does a respondent in P1 ensure his/her marriage is not dissolved on that file?
  • How does the court dispose of the remaining dangling P1, which MCA 1973 s 20 (see below) seems to enable the court to wind up on the cross-payer (as we have always done) altogether in one set of petition proceedings?

Law reform and a court form

The court form in question, Form D8B says:

  • This form should be completed if you wish to defend the divorce/dissolution  /(judicial) separation or nullity  petition issued by your spouse/civil partner. This could be because you do not agree that your marriage/ civil partnership has irretrievably broken down, or you wish to defend allegations made against you by your spouse/civil partner.
  • If you wish to apply for a divorce/dissolution/(judicial) separation or an annulment against your spouse or civil partner you should complete your own petition. This will be issued within the existing case, and the judge will determine the outcome.

Because the cross-petition deniers argue from the silence in the rules, citation of the rules (FPR 2010 Part 7 especially r 7.12 (what a respondent should do on being served with a petition; and see r 7.14 also)) is not possible here. ‘Answer’ and its contents are not defined in FPR 2010. If – as might be logical – one were to fall back on the old procedure, pre-FPR 2010 practice and the silence of FPR 1991, the case for cross-petitions would be made.

In King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) Blake LJ (at §[22]) recalled – in case there were any doubt on the subject – that procedure cannot be regulated by the terms of a form.

Primary law on cross-petitions

The discussion of this obscure subject starts from MCA 1973 s 20 and the common law. If any court process is started by a complainant (plaintiff, petitioner, applicant etc), the defendant/respondent has the right to file a defence or answer, and that that response can include a counter-claim (called a demurrer in medieval times).  CPR 1998 Part 15 reflects this common law position, as it must, in the absence of statutory authority expressly overriding it (see eg exp Simms below).

Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 reminds readers that the origin of the modern divorce process was the civil courts process, not the ecclesiastical procedures which it replaced. By the new Divorce and Matrimonial Causes Act of 1857 divorce procedure overrode the procedure in the ecclesiastical courts. That was the main basis on which the application of the open justice principle to divorce proceedings was explained in Scott.

MCA 1973 s 20 provides that whatever a petitioner can be granted in terms of relief (ie court order) so too can a respondent as if he or she ‘had presented a petition seeking that relief’. The relief can be provided in ‘any proceedings’, which perhaps implies that it is in the proceedings presented by the petitioner. Section 20 is as follows:

20 Relief for respondent in divorce proceedings

If in any proceedings for divorce the respondent alleges and proves any such fact as is mentioned in subsection (2) of section 1 above (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subsection) the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief.

Recently the Court of Appeal has suggested that they see no problem with the concept of a cross-petition (though the cross-petition issue discussed here was not argued in front of them). In Lindner v Rawlins [2015] EWCA Civ 61 – perhaps the only divorce procedure case to reach the Court of Appeal since the introduction of FPR 2010 – Black LJ said:

[6] In May 2013, the wife filed an answer in which she denied all the allegations made by the husband. She also filed a cross-petition in which she made diverse complaints against the husband, including that he had been controlling and violent….

Rule maker’s powers

It is understood that the rule-makers (Family Procedure Rules Committee: FPRC) believe that their silence on this subject, backed by the pre-amble to Form D8B (above), deletes the cross-petition from the divorce procedural lexicon (as, perhaps, it does); but also that it deletes it from English law. If this is the view of FPRC, their position is – to say the least – controversial; and it is not in any obvious way backed by their statutory powers; and it may not be intra vires the statutory powers of FPRC. These derive from Courts Act 2003 ss 75 and 76. Neither of these sections give any power to FPRC to change the common law or statute. Such would be very rare, if not impossible in modern legislation terms (see eg R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115).

A procedural rule cannot alter the substantive law or the jurisdiction of the court. It can only direct how the existing jurisdiction of the courts is to operate (see italicised passage below). For example, in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, Buxton LJ was commenting on the extent to which a new rule – CPR 1998 r 52.17 (setting aside appellate court orders) – should be interpreted:

[7] [Counsel for the appellant] argued that since the application was made under CPR 52.17 the court should start from, and apply, the plain wording of that rule, [which] prevailed over any previous jurisprudence that might be argued to limit the jurisdiction to any particular category of cases, for instance where the earlier decision had been obtained by fraud. Accordingly, the court should not take time with analysis of Taylor v Lawrence itself [the case on which r 52.17], or of the cases underlying it, but should ask itself whether this appeal should be reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind.

[8] That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628….[1] (emphasis added).

If a rule or other subsidiary legislation (eg FPR 2010) conflicts with primary law (common law or statute) the court must follow the primary law. MCA 1973 so 20 seems relatively clear. The common law (supported by CPR 1998 Part 15) permits a respondent to any court process to defend it and, in the same proceedings, to cross-apply (counter-claim). The 1857 reformers anticipated that this position would apply for the new divorce and matrimonial causes procedures. Whatever the silence of the 2010 rules suggest, this surely remains the law?

And those who argue the law can be changed by the pre-amble to a form must surely think again. The form does not represent the law, and is not within the powers of the person or FPRC by which it was drafted.

Post-script

The danger of printed forms: http://www.familylawweek.co.uk/site.aspx?i=ed146270 was pointed up by Taukacs v Taukaca [2015] EWHC 2365 (Fam), Holman J (3 August 2015) where a wrongly drafted form caused a woman to spend a week-end needlessly in prison, and perhaps to lose her summer holiday. Forms cannot routinely be assumed to represent the law.

[1] In the British South Africa case Lord Herschell said: ‘It has been more than once held that the rules under the Judicature Acts are rules of procedure only, and were not intended to affect, and did not affect, the rights of parties.’

SEXUAL RISK ORDERS AND THE INHERENT JURISICTION IN CHILDREN PROCEEDINGS

Hayden J: another view on child sex exploitation

London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam), Hayden J (judgment on 21 July 2015) is important for at least three reasons:

  • Hayden J defines the inherent jurisdiction of the High Court when it comes to a judge’s power to restrain alleged sexual abuse by one or more individuals against a child; and in so doing
  • He reviews the role of local authority in obtaining child sexual exploitation orders and the earlier Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014) of Keehan J.
  • The existence and scope of sexual risk orders under Sexual Offences Act 2003 s 122A (in force since the Birmingham case) was confirmed.

In December 2014 in Birmingham CC v Riaz (above) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl. 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. He recognised that the step taken by him was radical. His order is set out in full in Redbridge v SNA (at §[3]) and formed the basis of the Borough’s application to Hayden J.

Keehan J’s order had included the following: that the male defendants may not:

  1. e) Approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station…
  2. i) Cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

SNA’s advocate criticised this formulation (§§[16]-[18]): the orders are not related to the child the subject of the application and are contrary to the philosophy of the children jurisdiction, she said. This jurisdiction relates to a particular child and, in the case of wardship, where the child issues cannot be resolved under Children Act 1989.

Background facts

The background facts were that care proceedings had been started by Redbridge in August 2014 in respect of SA, a girl aged 17, AA a girl of 14, AN and ZA (boys aged 10 and 6). SNA is the father of the boys and stepfather of the girls. In December 2014 HHJ Sapnara concluded a fact finding hearing and made findings against SNA: of systematic grooming of SA over a number of years from a very young age; use of violence and eventually rape per vagina and anus. He judgment included the following: ‘SNA is a highly manipulative abuser of a child’ (§§[21]-[22]).

SNA was referred to Dr Shaun Parsons (a consultant forensic psychologist) who concluded that SNA’s behaviour ‘is evidence of a deviant sexual interest and towards a sexual assault against pubescent and older pre-pubescent and adult females’ (§[23]).

Inherent jurisdiction of the High Court

The judge took time to reflect; and in particular to explain his own view of the High Court’s inherent jurisdiction. Earlier he had summarised Keehan J’s views on the jurisdiction, especially:

[5] [Keehan J] recognised that the use of the inherent jurisdiction has been very significantly curtailed by Children Act 1989 s 100 and that a local authority may not apply for any order under it without [leave. He] went on to consider what the modern scope and ambit of the inherent jurisdiction might extend to. He noted the observations of Waite LJ in Re M and N (Minors) [1990]:

‘… the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.’

Hayden J’s survey of the operation of the inherent jurisdiction in relation to children sees him balance its use in the Family Division in children proceedings against its use in judicial review. He starts:

[33] … The concept of the ‘inherent jurisdiction’ is by its nature elusive of definition. Certainly it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’. But it is not ‘ubiquitous’ in the sense that its reach is all- pervasive or unlimited.

But he then explains the need for the courts to exercise the jurisdiction ‘sparingly’ (which recalls another judgment of Waite LJ in Thomas v Thomas [1995] 2 FLR 668, CA: the discretion of a court in financial relief cases is in theory almost limitless, says Waite LJ; but (at 670): ‘For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that “it is excellent to have a giant’s strength but tyrannous to use it like a giant.”’) Hayden J says:

[33] … Precisely because its powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.

He then looks at a little of the jurisprudence of the Administrative Court in children matters, and in particular looks at its ‘interface’ with the family courts and Court of Protection:

[35] Not only is the scope of the inherent jurisdiction restricted but the interface between the Family Court or the Court of Protection and Public Authorities is subtle. Thus the High Court may try to persuade a Public Authority to act in a way which the court considers to be in the best interest of the child but it must not allow itself to be utilised to exert pressure on a public authority see: R v Secretary of State for Home Department ex p T [1995] 1 FLR 293 [Court of Appeal: Staughton and Hoffmann LJJ and Sir Roger Parker].

[36] The development of judicial review, as illustrated by ex parte T (supra), has also served to curtail the exercise of the powers of the inherent jurisdiction. No power be it statutory, common law or under the prerogative is, in principle, unreviewable. The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary.

He concludes, of the inherent jurisdiction in children proceedings, as follows. Firstly:

[36] … It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.

Secondly, he held:

[37] … that to extend the scope of the inherent jurisdiction to children who are neither known nor subject to any proceedings, is to go beyond the parameters of its reach. However well-intentioned the ambition to prevent child sexual exploitation generally, this is ultimately to make a utilitarian calculation of social policy. The framework within which such children should be safeguarded and protected is for Parliament to create and for the Courts to enforce.

And finally, he says,

[45] Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf [Redbridge is outside] the scope of this Court’s powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in the Birmingham case.

Sexual risk orders

All was not lost. Sexual risk orders under Sexual Offences Act 2003 s 122A are now available since the Birmingham case (as explained by Hayden J at §[46]); and this enables the police to take proceedings for an order, namely where:

(2) … the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

Proceedings were under way in the magistrates’ court against SNA. The Redbridge application was therefore dismissed, and in the end the judge decided he could not accept an undertaking from SNA pending the outcome of the s 122A application.

We now have two judicial views on the inherent jurisdiction. Both are from cerebral judges, who both deserve genuine respect. Applications for sexual risk orders may make render largely redundant a definition of the inherent jurisdiction in this children context. It remains a live subject. The views of these two judges in the inevitable further debate will be loud in any discussion.