# Humanrights and children’s rights: interference with publicity

Publicity: ‘interplay’ of public interests in court proceedings

 

Family proceedings, governed by Family Procedure Rules 2010, are heard in private save where rules or court order otherwise provide (FPR 2010 r 27.10). The press may be admitted (r 27.11(2)). Alongside this Sir James Munby P is keen to encourage legitimate reporting of family courts (Transparency in the family courts: publication of judgments:  practice guidance issued on 16 January 2014 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf).

 

Human rights under the European Convention 1950 govern privacy, with the confidentiality of family – especially children proceedings – alongside the rights (such as they are) of the press to publicise information about family proceedings. Convention articles 6, 8 and 10 will mostly be in play. Generally the fact of Art 6 (right to a fair trial) will not be in question, as explained by Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591:

 

[15] … Article 6 is, however, relevant so far as it provides that “the press and public may be excluded from all or part of the trial” for a variety of reasons including “where the interests of juveniles” so require. The purpose of a public hearing is to guard against an administration of justice in secret and with no public scrutiny and to maintain public confidence….

 

The balance which must be struck, said Lord Steyn, is mostly between Art 8 (right to a private and family life) as against Art 10 (freedom of expression). But first, Human Rights Act 1998 s 12(4) must be born carefully in mind when any decision is to be made about publicity:

 

[16] By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right.

 

HRA 1998 s 12 gives particular prominence to ‘freedom of expression’, and in particular it says:

 

(4)The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)the extent to which—

(i)the material has, or is about to, become available to the public; or

(ii)it is, or would be, in the public interest for the material to be published;

(b)any relevant privacy code.

 

Interplay of public interests

 

So, said Lord Steyn, in looking at the ‘interplay’ between Arts 8 and 10 – that is of the public interests of privacy on the one hand and of freedom of expression and openness of court process on the other – the balance must be struck with the following in mind:

 

[17] … First, neither article [Arts 8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

 

For example, in Birmingham City Council v Riaz, AB & Ors [2015] EWHC 1857 (Fam), [2016] 1 FLR 797 (and see https://dbfamilylaw.wordpress.com/2015/07/03/child-sex-abuse-lifetime-reporting-restriction-for-survivor/) Keehan J granted a lifetime reporting restrictions order to a young woman who had been the subject of severe sexual abuse. He cited s 12(4) and then confirmed that he had had cited to him JXMX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 (where anonymity was granted to a child under an infant settlement order; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). He explained his view where the anonymity of a child was concerned in the light of s 12(4) and the interplay of Arts 8 and 10:

 

[13]   It might be thought that the decision of the Court of Appeal in JXMX, in recognising that lifelong anonymity orders should normally be granted in a particular class of case, ie infant or protected party settlement approval hearing, does not sit easily with the long line of authorities emphasising the importance of open justice and the freedom of the press. For my part, I would not share that view. Rather the decision reflects the emphasis the courts now place on the need to accord due respect to the Art 8 European Convention rights of litigants, especially of children, young people and protected parties balanced against the Art 10 rights of the press and broadcast media. The position is encapsulated in the observation of Moore-Bick LJ when he said, at para [29]:

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.

 

In JXMX and Birmingham v Riaz the rights of the child to anonymity took precedence over any other, including the rights of the press seen in terms of HRA 1998 s 12(4).

 

Children’s rights: another dimension

 

And when it comes to the rights of children in civil proceedings generally, in a short judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26 [2016] 2 FLR 251 (where the Supreme Court continued an interim reporting restrictions order in a case where PJS was threatened with media exposure of his ‘three way’ sex proposal; and where full prominence was given Lord Mance in the Supreme Court to a consideration of s 12(4)) Lady Hale reflected on a child’s rights and protection of their interests. She explained that at a final trial of the injunction application ‘the likely harm of the children’s interests’ must be considered (para [73]). Their rights add another dimension to the injunction balancing exercise:

 

[78] In the leading case of In re S (A Child) (Identification: Restrictions on Publication) ([above]), very careful consideration was given, at first instance, in the Court of Appeal and in the House of Lords, to balancing the public interest in publishing the name of a woman accused of murdering her child against the welfare interests of her surviving child who was living with his father. The public interest, in the legal sense, of publication was very strong. There was expert evidence of the welfare interests of the surviving child. It could not be more different from this case. As Lord Mance has demonstrated, there is no public interest in the legal sense in the publication of this information. There is no expert evidence of the interests of these children. These are all matters which should be properly argued at trial, not pre-empted by premature disclosure.

 

In any proceedings – criminal or civil – the interests of children affected by publicity and the outcome of the proceedings will have high priority. In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338 in the Supreme Court in a deportation case, where the families of the proposed deportees were affected by any decision, Lord Kerr said (substantially in agreement with Lady Hale):

 

[144] I have found the argument about the place that children’s interests should occupy in the hierarchy of the court’s consideration of article 8 most persuasively expressed in the Coram Children’s Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests. It also ensures a structured approach to the application of article 8. … Where a child’s interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided.

 

As can be seen, Lord Kerr speaks in classic rights language: what are the rights of any children concerned; what is the extent of the interference proposed by the parties and the court; and what (if any) is the level of justification for that interference with the child’s rights? This sequencing is the starting point for wider consideration of the issue of children’s right as human rights with which this article is concerned.

 

In Re S (Identification: Restrictions on Publication) (above) the issue was the anonymity of the mother in her criminal trial; but, agreeing with Hedley J at first instance, the House of Lords held the interests of publicity for a criminal trial out-weighed the Art 8 interests of the child whose identity might be discovered. If Lord Kerr’s sequencing approach and Lady Hale’s PJS comments were added to the child’s rights mix in a similar application today, it is tempting to wonder if the decision in Re S would be the same?

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Private family hearings: a way through the ‘mess’

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J said that to describe the law about the ability of the press to attend family proceedings as ‘a mess would be a serious understatement’. It that is a mess, then so too is the law about attendance of anyone else or for release of any documents from family proceedings; and by extension as to when a hearing is in open court or not.

 

This note is intended to try to make brief sense of the ‘mess’ (for more detail see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis, http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#.WA53jI9OLIU) Chs 2 (privacy or not in family proceedings); 13 (release of court documents):

 

(1)               Proceedings in private – All family proceedings are in private (Family Procedure Rules 2010 (FPR 2010) r 27.10) save where specific rules otherwise dictate, or the court orders.

 

(2)               Children proceedings and contempt of court – All children proceedings are in private; and it is a contempt of court to breach that privacy eg by telling the press names of children or parties (Administration of Justice Act 1960 s 12(1)). Social workers or expert witnesses can probably be named (Re J (A Child) [2013] EWHC 2694 (Fam) sub nom Re J (Reporting Restriction: Internet: Video) [2014] 1 FLR 523, Sir James Munby P) save where the court orders otherwise eg because it might enable a child to be identified.

 

(3)               Privacy and financial relief – In financial relief proceedings the court can order that the hearing be in public (FPR 2010 r 27.10(2); Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 FLR 168 Holman J). It is more likely that the hearing will be in private (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J; and see Appleton (above)).

 

(4)               Press attendance at court – A narrow range of non-parties – such as accredited press representatives – can attend court (FPR 2010 r 27.11(2)); but they must still recognise the anonymity and confidentiality rules which apply under AJA 1960 s 12(1).

 

(5)               Making sense of the proceedings – Release of papers to the press to understand proceedings (per Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338; and see R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618) is limited. It has been tried in children proceedings by Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

(6)               Release of hearing documents – At present the law allows release of some hearing documents (eg skeleton arguments, position statements: per Guardian v Westminster above) (a) in open court proceedings and (b) in family proceedings if the court so orders (FPR 2010 r 29.12). Mostyn J (Appleton (above)) and practice direction PD29A para 2.3 say otherwise; though they are contrary to the spirit and the law (so far as it can be applied to private hearings) referred to in para (5) (above).

 

(7)               Transparency – Transparency thus far: suitably anonymised judgements at the appropriate level of court should be published (Transparency in the family courts: publication of judgments:  practice guidance issued on 16 January 2014 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf); but beware jig-saw identification.

 

(8)               Release of hearing documents in children proceedings – Documents from children proceedings may be released to the police, to CPS and the security services with appropriate conditions on any orders to protect confidentiality (Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), [2015] 1 FLR 1218, Baker J; X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam), McDonald J; and see 2013 protocol for release of children proceedings papers to CPS: http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf).

 

(9)               Documents under compulsion of disclosure – Documents produced under compulsion of disclosure rules may not be released to non-parties or otherwise ‘used’ outside court (the ‘implied undertaking’, now in CPR 1998 r 31.22(1); and see Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261 sub nom Clibbery v Allan [2002] 1 FLR 565) save with permission from the court.

 

(10)           Open court hearings – All hearings in civil proceedings (save where excepted by CPR 1998 r 39.2(1)) are in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; European Convention 1950 Art 6(1)). This rule applies to some family proceedings (Scott was a divorce case) such as divorce hearings and committal applications (and see r 27.10).

# Human rights: availability of special measures for vulnerable witnesses and children

What criminal proceedings procedures offer the family courts to help vulnerable witnesses?

 

The failure of the family proceedings rule-makers to provide protective rules for children and vulnerable witnesses in family and – to an extent – other civil proceedings tends towards a failure of the government to provide a fair trial (European Convention 1950 Art 6(1)) for such individuals. Protection has been available, to a sophisticated level, for children and vulnerable witnesses in criminal proceedings at least since the introduction of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2. If it be accepted that YJCEA 1999 is mostly a codification of common law remedies, then the failure of judges in family proceedings to use them (see references below eg to Re S (Children) [2016] EWCA Civ 83 (considered further below) compounds the unfair trail aspect.

 

In 2014 Sir James Munby, President of the Family Division, set up the Vulnerable Witnesses and Children Working Group (VWCWG) – with the suggestion that three areas be reviewed in relation to the evidence of children and vulnerable individuals: (1) judge’s meeting children, (2) children giving evidence and (3) ‘vulnerable people giving evidence in family proceedings’. This group published its final report, with proposed draft rules in March 2015; but the any rules are yet to be made. The work of the VWCWG will be considered in Part 6.

 

The special measures directions considered in this chapter include the evidence of children; in part because the VWCWG proposed amendments to FPR 2010. However, the ways in which children participate in proceedings are mostly dealt with in Chapter 19 under the respective Guidances for their evidence and meeting with the judge: Guidelines in relation to children giving evidence in family proceedings of 2011 ([2012] Fam Law 70 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/FJC/Publications/Children+Giving+Evidence+Guidelines+-+Final+Version.pdf); and Guidelines for judges meeting children who are subject to family proceedings of 2010 ([2010] 2 FLR 1872, https://fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf).

 

The special measures under YJCEA 1999 Part 2 are designed to help ‘vulnerable or intimidated witnesses’ to give their best evidence. As Lady Hale explained in R (D (a Minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393:

 

[19] … The aim of the special measures is to assist vulnerable or intimidated witnesses who might otherwise be unwilling to come forward at all or unable to give the best evidence of which they are capable.

 

Scheme under Youth Justice and Criminal Evidence Act 1999

 

Youth Justice and Criminal Evidence Act 1999 (YJCEA 199) Part 2 sets up a scheme for special measures for assistance of children and vulnerable witnesses in criminal proceedings. The scheme does not apply in family proceedings; but it will be considered in some detail here, first, because reference is made to it in a number of family cases (including, most prominently, by Lady Hale in Re W (Children) (Abuse: Oral Evidence) (above)); secondly, because it is the source for a number of the proposals of the VWCWG; and, thirdly, because many aspects of the YJCEA 1999 scheme represent the common law and may be used by analogy in family proceedings without any changes to substantive law or court rules.

 

Under YJCEA 1999 s 18(1)(a), the following special measures are available – as appropriate – to help children and vulnerable witnesses.

 

  • preventing a witness from seeing a party, by ‘screen or other arrangement’ (s 23);
  • allowing a witness to give evidence by live link (s 24) (ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
  • hearing a witness’ evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
  • admitting video recorded evidence or cross-examination (s 27 and 28);
  • questioning a witness through an intermediary (s 29);
  • using a device to help a witness communicate (s 30);
  • a direction may be given to dispense with the wearing of wigs and gowns when evidence is given (s 26).

 

Eligibility for assistance: ‘quality of evidence’ – special measures direction

 

The criterion for use of special measures is that, were it not for such measures, the quality of a witness’s evidence might be impaired. The ‘quality of a witness’s evidence’ (a term adopted by the VWCWG would-be reformers) is defined, for the entirety of Part 2 Chapter 2, by s 16(5) as follows:

 

(5) In this Chapter references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.

 

YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance under Chapter 1 of the Act. YJCEA 1999 s 16(1)(a) defines a witness in criminal proceedings as eligible for assistance if under 17 at the time of the hearing fixed to consider a special measures direction. Section 16(1)(b) deals with witnesses who are otherwise eligible for assistance (ie a vulnerable witness). Section 16 provides as follows:

 

16 Witnesses eligible for assistance on grounds of age or incapacity

(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—

(a)if under the age of 17 at the time of the hearing; or

(b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).

(2)The circumstances falling within this subsection are—

(a)that the witness—

(i)suffers from mental disorder within the meaning of the Mental Health Act 1983;

(ii)otherwise has a significant impairment of intelligence and social functioning;

(b)that the witness has a physical disability or is suffering from a physical disorder.

 

YJCEA 1999 s 16(1)(b) deals with all other witnesses (ie other than children under 17), who may be eligible for assistance (ie vulnerable witnesses) and who come within the terms of s 16(2): namely that are mentally incapacitated with the terms of Mental Capacity Act 2005, or that otherwise the ‘witness has a physical disability or is suffering from a physical disorder’. Section 17(1) defines as eligible for assistance a witness where:… the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In the case of a child under s 16 or other individual under s 17 the court must consider any views of the witness concerned (ss 16(4) or 17(3)). The adult witness ceases to be eligible for assistance if s/he tells the court assistance is not required in giving evidence (s 17(4)).

 

If a witness comes within one of the categories in ss 16 or 17 s/he is eligible to be considered for assistance in the form one or more of the special measures directions set out in ss 23-30. Section 19 provides for setting up special measures directions for all witnesses who come within the provisions of ss 16 and 17 in criminal proceedings, whilst particular arrangements apply in relation to children (s 21). For all witnesses YJCEA 1999 s 19(1) and (2) provides for ordering of special measure directions and the factors the court takes into account in so doing.

 

Rights of a party to cross-examine

 

The question for the House of Lords in R (D (a Minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 was whether an accused in criminal proceedings is entitled to cross-examine a child witness in the accused’s presence within the terms as to special measures and ‘special protection’ for a child under YJCEA 1999. The House of Lords held unanimously that the nothing in European Convention 1950 guarantees face-to-face questioning and the appeals were dismissed. It is necessary only that the defence have a proper opportunity to challenge a prosecution witness. Lord Rodger explained this:

 

[15] … Article 6(3)(d) of the Convention [has not] been interpreted as guaranteeing the accused a right to be in the same room as the witness giving evidence. What matters, as Kostovski v Netherlands shows, is that the defence should have a proper opportunity to challenge and question the witnesses against the accused. The decision of the European Commission of Human Rights in Hols v Netherlands Application no 25206/94, 19 October 1996, and the judgment of the Court in SN v Sweden Application no 34209/96, 2 July 2002, confirm that these requirements can be satisfied even where, for good reason, the accused is not physically present at the questioning. Here the good reason is to further the interests of justice by adopting a system that will assist truthful child witnesses to give their evidence to the best of their ability….

 

A child or other vulnerable witness is entitled to protection from cross-examination by an alleged assailant of a young person under YJCEA 1999 s 34. In family proceedings comments of Lady Hale in the Supreme Court can be referred to in support of this proposition, as to the present position at common law. In Re W (Children) (Abuse: Oral Evidence) (above) Lady Hale spoke of ‘special measures by analogy’, and made reference to the way family courts might make use of special measures:

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot [ie Report of the Advisory Group on Video Evidence (1989). Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

However, said Lady Hale, private family children proceedings created particular pressures, such that allegations are being pressed by one parent against the other; the child is rarely a party with the protection of a guardian or legal representation.

 

[29] In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings. However, there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. On the other hand, the child will not routinely have the protection and support of a Cafcass guardian. There are also many more litigants in person in private proceedings. So if the court does reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.

 

Measures available in family courts

 

In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 Lady Hale explained how family law was already plentifully provided with means to protect vulnerable witnesses. For example, there are ways for child witnesses to avoid direct ‘courtroom confrontation’; and this could be extended ‘to other vulnerable witnesses’ (as in the case of Re A: Re A involved disclosure of the statements made by a vulnerable young adult witness (‘X’) to social workers about the child A; and the likely later calling of X to give evidence during A’s fathers claim for contact with A):

 

[36] It does not follow, however, that X will have to give evidence in person in these proceedings.… If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….

 

Alternatively questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness:

 

[36] … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.

 

Justice for an alleged abuser

 

The position of the alleged abuser or ‘accused’ – like K’s brother and father of the children in Re S (Children) [2016] EWCA Civ 83 (because special measures could not be fixed for a young person witness (K) against the father, her mostly hearsay evidence was accepted by the judge and in the light of her refusal to give oral evidence); or the father in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 – must not be forgotten. They too have rights. European Convention 1950 Art 6(1) guarantees a fair trial; and, in the case of criminal proceedings Art 6(3)(d) intends that all persons charged with a criminal offence should, as a minimum, have the right:

 

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

 

In R (D (a Minor)) v Camberwell Green Youth Court (above) the House of Lords held that the provisions of the 1999 Act did not infringe Art 6(3)(d) rights, so long as means were found to ensure that an accused or other party could put questions to challenge the evidence of an opposing party’s witness.

 

Fairness will be served – and as far as possible European Convention 1950 Art 6 complied with – if any measures in family proceedings can achieve the equivalent of YJCEA 1999 Part 2. And this is especially so where – as with care proceedings – the consequences of the process are as close to those in a criminal trial as can be in family proceedings (as occurred in Re S (above) and as Gloster LJ made clear in her dissenting judgment in that case).

Release of court documents to the security services in children proceedings

Confidentiality a pre-requisite

 

In X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam) judgment on 6 October 2016 (headed Commissioner for Police of the Metropolis v A Local Authority) McDonald J dealt with an application by the Metropolitan Police (MPS) to release a judgment and mother’s statement in unconcluded care proceedings to the security services (otherwise MI5). MPS had received the documents on their own earlier application. MPS wanted to release the documents to assist in their enquiries (eg in case MI5 could provide them with information about any criminal, including radicalisation, information about the mother: MI5 were not a party to the application).

 

The mother did not consent nor oppose. All other parties agreed to release. The case turned on whether there should be, and if so what, conditions upon release. MPS said release should be unconditional. Taking the lead for the respondents, Frank Feehan QC (acting for the three-year old’s grandmother) said release should be conditional. McDonald J agreed: the court should maintain control of confidentiality in the documents.

 

McDonald J provides a masterful summary of the relevant law:

 

  • Children Act 1989 (CA 1989) proceedings (eg care proceedings, as here) are private, and are embargoed from ‘publication’ (Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J) by Administration of Justice Act 1960 (AJA 1960) s 12(1)) (paras [16] and [17]).
  • Publication will not be a contempt under AJA 1960 s 12(1) if it is within the ‘communication of information’ provisions of Family Procedure Rules 2010 (FPR 2010) Part 12 Ch 7 (per AJA 1960 s 12(4)); and as explained by Baker J in Re X and Y (Disclosure of Judgment to Police)[2014] EWHC 278 (Fam), [2015] 1 FLR 1218) ([17]-[18]).
  • The security services (eg MI5) are not included in Part 12 Ch 7 (see table in Practice Direction 12G), so the applicant MI5 must justify to the court any order for release ([19]-[20]).
  • CA 1989 s 98(2) dictates when admissions by a parent should be released (Re EC (Disclosure of Material) [1996] 2 FLR 725, which still defines the court’s approach to s 98(2)) ([21]-[22]).
  • As ever, s 98 is intended to encourage frankness by parties in children proceedings subject to its inherent limitations ([23]).
  • In making any release order the court must have in mind any European Convention 1950 rights in play (especially those in Art 6 and 8) ([24]).
  • If an order is to be made the court will consider what conditions should be imposed to guarantee confidentiality (including a staged approach) ([25]-[26]). Release to MI5 unconditionally might not be sufficient to guarantee confidentiality. Conditional release was justified ([27]-[35]).

 

The judge summarises the balance the court must strike: first, between maintaining confidentiality for family proceedings and ‘the strong public interest in the prosecution of serious crime and the punishment of offenders’ which includes ‘the public interest in identifying those who have been guilty of grave offences under the anti-terrorism legislation’; and, secondly, the need to uphold laws ‘aimed at guaranteeing the fundamental rights of the parties to these proceedings, the maintenance and protection of which rights the work of the police and intelligence agencies in a liberal democracy is designed to achieve’ (para [57]). Where disclosure is sought, the tension created between these competing principles must be balanced fairly and in a Convention-compliant manner by reference to the factors set out in Re EC (above).

 

Conditions to protect confidentiality in family proceedings

 

The ratio of the decision was that the court must not interfere with the investigation of serious crime. The judge was satisfied that to refuse the requested permission to MPS might compromise its investigation (para [69]). However, where need be conditions should be imposed to ensure a proper balance between the ‘various rights and interests engaged [and] having regard to the particular circumstances of the case’ (para [70]). It was important that the court encourage co-operation between agencies (see eg 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings October 2013 (http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf)) (para [72]); but the overriding of confidentiality conditions which – as in X, Y and Z – would confidentiality must be justified if release was to be unconditional:

 

[71] … However, in circumstances where what is in issue is the disclosure of confidential, and in some cases highly sensitive, material, the court will require evidence concerning the operational impact of refusing disclosure or imposing conditions that goes beyond mere inconvenience. The mere fact that an agency will be required to return to court to obtain permission for onward disclosure is unlikely to be sufficient…

 

McDonald J was not prepared to override ‘the statutory principle of confidentiality’ (most would probably regard confidentiality as common law, perhaps: see eg Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6, [1990] 1 AC 109). He was unwilling to order ‘onward disclosure’ unconditionally (para [79]. He therefore ordered release of documents subject to conditions which maintained control of confidentiality in the documents with the family courts (see paras [58]-[60]).

 

MI5 must come back to court, if need be by closed material procedure (considered as a coda to the judgment at paras [89] to [95]), for further release. The emphasis will remain – so far as possible – for the family courts to preserve the frankness which s 98(2) is intended to encourage; and to do so alongside the rights to confidentiality of the children and other parties involved.

Thoughts for a fair family court

A letter from Philip Marshall QC

 

Philip Marshall QC, chair of FLBA, comments at http://flba.co.uk/blog/2016/10/07/flbmail-5-oct-2016/ on the recent ‘Fifteenth view’ of Sir James Munby, President of the Family Division (see eg http://flba.co.uk/downloads/ms_13993.pdf). The president’s short opening paragraph includes: ‘The fact is that we are approaching a crisis for which we are ill-prepared and where there is no clear strategy to manage the crisis.’

 

Philip’s comment on this diagnosis includes:

 

‘We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.’

 

I agree. Fairness – or justice – within the family courts (Family Division and Family Court) must remain an absolute. Justice in a ‘reasonable time’ (European Convention 1950 Art 6(1)) and that if resolution is delayed in children cases is generally to a child’s detriment (Children Act 1989 s 1(2)) must both remain part of the overriding objective of family law. But they are meaningless unless accompanied by real time-saving procedural proposals.

 

Case management: the key to saving time

 

Case management is the key; and Sir James is in a unique position to influence that, for he is both administrator and judge (a constitutional anomaly: both executive and judiciary; but for the present that is not an immediate concern). Other principles for avoidance of delay without sacrifice of fairness can also be identified. A few thoughts follow. Mostly these boil down to judges following the rules and law already there (or – as often happens – being urged by Sir James and the Court of Appeal so to do):

 

  • Case management – This is critical: interventionist, firm, ‘robust’ (the modern cliché) – call it what you will. The judge can control progress of a case in a variety of ways, so long as fairness is not lost and judicial continuity is retained. (A commercial plug: I deal with this extensively in Evidence in family proceedings shortly due for publication by Family Law/LexisNexis). Proportionality must rule.

 

  • Definition of issues for trial in a case – The most important case management question is to define the issues before the court so that everyone knows what remains to be contested and the evidence fairly required to deal with it.

 

  • Relevance of evidence – The rule is that only evidence relevant to an issue is admissible; so judges (eg as part of case management) can firmly exclude what is not relevant to a clearly defined issue before the court.

 

  • Legal representation – Legal representation can increase fairness, and – if self-control is exercised by family lawyers – it can save the court time. It should also promote settlement or definition of issues and pruning of irrelevant evidence.

 

  • Mediation and settlement conferences – Mediation (Philip comments on settlement conferences in his letter) so obviously can save court time: where cases are settled (and many do if parties want them to); or if issues are narrowed by mediators. Mediation can only work properly if it remains voluntary; but judges can urge it upon parties.

 

And clarity: perhaps I am biased; but I also believe that a much clearer and better expressed version of our law – statute and rules – could save time. Less time would be spent getting it wrong, or on appeal to the Court of Appeal to explain unclear law. And clarity would certainly promote justice.

 

There is no magic in any of the thoughts above. All are there in the rules already. Fairness cannot be sacrificed by family courts on the altar of pressure of time; just as health should not be sacrificed to pressure of resources. That said, realities must be faced by all of us involved in family courts process.