Child’s evidence – Part 2: contact and domestic violence

Child welfare, contact – and a practice direction

 

In Re S (a Child) [2017] EWCA Civ 44 (as explained in Part 1 of this series) the Court of Appeal allowed one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). M did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) As reported in Part 1 the parents had a short relationship. In the court below the judge had found three of M’s allegations proved: controlling behaviour and violence exacerbated by drink. A last allegation was based on what A had told a family support worker, but which the judge had rejected; though the judge had not heard what the child had to say about what had happened.

 

This series looks at how European law deals with child issues arising in connection with this case; and hypothetical issues which arise from it where law reform is need or is under review, as follows:

 

  • Child’s rights and Art 24 – Considered in Part 1.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal)?
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Relocation to Ireland and further hearings about A – To be considered in Part 3.

 

Children’s fundamental rights

 

This article looks at the Re S case (above). It is considered especially from the point of view of the child; in the light of rights of the child under EU Charter law; and of recent reforms to existing UK statute law (especially Children Act 1989 (CA 1989) s 1).

 

Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 on the ‘Rights of a Child’ states:

 

  1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
  2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
  3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

By contrast, PD12J (considered further below) requires consideration to be given to ‘Representation of the child’ as follows:

 

  1. Subject to the seriousness of the allegations made and the difficulty of the case, the court shall consider whether it is appropriate for the child who is the subject of the application to be made a party to the proceedings and be separately represented. If the court considers that the child should be so represented, it shall review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court.

 

Amendments to Children Act 1989 s 1

 

Children Act 1989 s 1(2A) and (2B) were amended with effect from April 2014 in the context of the court dealing with the welfare of a child of a broken relationship as follows:

 

1 Welfare of the child 

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

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a)…, is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

 

These ponderous amendments to a previously clear section are elaborated upon in s 1(6):

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

Welfare of a child is to equated with involvement – direct or indirect (s 1(2B)) – of a parent in a child’s life (s 1(2A)); but not where that contact, on evidence before the court, ‘would put the child at risk of suffering harm’ (s 1(6)).

 

In its original form Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (PD12J) was designed to deal with questions of domestic violence alongside contact. It was issued in 2008 in response to the first report of Women’s Aid into ‘Twenty-Nine Child Homicides’. It was re-issued to in its present form, at the same time as introduction of the Family Court and of the amendments to CA 1989 s 1. More background to this is explained at Cris Curley’s article ‘Domestic Violence and the Impact on Contact Re-examined’.

 

PD12J contact and domestic violence

 

PD12J sets out as its purpose (§2) that it is intended ‘to set out’ what should happen in relation to contact proceedings where domestic violence is admitted, or that a child or a party has experienced domestic violence by a parent; or that there is a risk of such violence. In its present form it accompanies the CA 1989 s 1 amendments referred to above; but there is little attempt to link what is set out in PD12J to the formal provisions Family Procedure Rules 2010 themselves in relation to domestic violence proceedings (Family Law Act 1996 part 4 and FPR 2010 Part 10).

 

Amendments are now proposed in a report prepared by Cobb J for the President of the Family Division, ‘Review of Practice Direction 12J FPR 2010’  (18 November 2016). This may provide a move away from what has been seen under s 1(6) as ‘contact at all costs’ with a new §4 (see below) which displaces the presumption where contact could place a child at risk or the other parent’s life at risk, or either at significant harm. Law reform is needed here; but in what terms should this be done and by what means in law should it be achieved?

 

In an attempt to improve the position of children where domestic violence has been proved Cobb J proposes as follows:

 

  1. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply. The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

A footnote to this paragraph explains:

 

The statutory presumption in section 1(2A) CA 1989 applies ‘unless the contrary is shown. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm.

 

Thus it is proposed that a practice direction should put a gloss on the law not provided for by Parliament.

 

Practice direction and law

 

A practice direction can neither create nor change the law. In that sense it is not law. It is there to guide procedure. In Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274  the Court of Appeal considered whether a judge could make a practice direction or issue practice guidance. They explained what a practice direction is – now issued by the President of the Family Division with approval of the Lord Chancellor (Courts Act 2003 s 82).

 

The particular significance of this is that if an abused parent or child goes to court thinking that the new practice direction protects them, they may find that a judge is persuaded by the other parent that it does not. The judge may take the view that a practice direction cannot tell a court to ignore the law (as the proposed new §4 seems to do). This similar, though in different scale, to the Supreme Court telling the Prime Minister that she could not ignore Parliament and must have a bill for UK to leave Europe.

 

Thus, in Bovale, the Court of Appeal assumed that the function of a practice direction was subsidiary to and supportive of a rule which already defined procedure:

 

[36] … We accept that one object of the practice directions which supplement the rules is to provide guidance to litigants but they also contain directions as to the procedure that should be followed.

 

Children must be protected, especially where the court has evidence of their harm; but if this is to be done by restrictions on or refusal of contact this affects the rights of a parent and of the child. It must be done in a way which complies with law and brings the law in a fait way within the terms of Art 24(3) of the Charter (above). If it is to be said that, as a matter of law, ‘the contrary is shown’ (per CA 1989 s 1(2A)) and that the ‘involvement of [a] parent in the life of the child concerned’ may inhibit a child’s welfare, a statutory presumption is overridden by a practice direction. Thus where – as in Re S violence may be proved against him (it has been proved against A’s mother) – then those allegations must be stated in an Act of Parliament as the basis for findings under s 1(6); and the problems of the parents (mostly women) and children affected must be given the dignity in statutory provision (which does not include a practice direction) which their difficulties demand.

 

And the attempted change of the law must not, please, be left to be exposed as not-law by a violent father. That would enhance the abuse still further.

 

Further abuse by cross-examination

 

Abuse by cross-examination in family courts   looked at the issue of the experience – mostly of women – being cross-examined by an unrepresented former partner, against whom abuse is alleged. It was said by the all-parliamentary group which had reported in October 2016 whose report was considered there:

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

Cobb J’s report proposes an addition to §28, which deals with the hearing of any contact issue:

 

  • The judge or lay justices must not permit an unrepresented alleged abuser to cross-examine or otherwise directly question the alleged victim, and must not require an unrepresented alleged victim to cross-examine or otherwise directly question the alleged abuser.

Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for tThe judge or lay justices may to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence

 

The article went on to look at measures which could be used to alleviate this issue on analogy with what is to be found in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). Where domestic violence is alleged where contact is in issue the question and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for a complainant (A) or the child(ren) concerned (C) to be submitted to cross-examination by the alleged abuser (B); and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article considers the question of cross-examination in person of C by B (the subject of cross-examination of A is dealt with in the article referred to and is now proposed for reform by the Secretary of State for Justice).

 

The analogy with criminal proceedings must be pursued. There a witness in C’s position is protected (YJCEA 1999 Part 2 Ch 2). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 ). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Cross-examination of the child

 

Dealing with a child’s evidence – as could be the case with the child A in the Re W case – calls for sensitive case management and special attention by the court. If it were to be approached as in criminal proceedings, it will call for public funding (now under review by the Ministry of Justice).

 

For children giving evidence in criminal proceedings YJCEA 1999 s 34 reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

YJCEA 1999 Part 2 Ch 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a witness, where the various forms of allegation of abusive situation in ss 34-36 apply:

 

(4) If the court decides that it is necessary in the interests of justice for the witness to be [cross-examined other than by accused in person], the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Much may already be possible under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485  (a case involving evidence from a 14 year-old child witness) the family courts can act (italics added):

 

[28] There are things that the [family] 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…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] 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.

 

Child’s rights: contact and domestic violence

 

In R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157 the Court of Appeal (Criminal Division) was concerned with the evidence of another 8 year old (C). A judge had decided to refuse to hear in criminal proceedings. JP was one of two accused whose convictions were under review in the Court of Appeal, Criminal Division in that appeal. He had been convicted on three counts of sexual assault on C. Special measures directions had been given as Hallett LJ explained:

 

[9] … The child’s video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Bennett, using the live link. He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate’s Gateway Toolkit. All parties agreed that [C], described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required.

 

On day of the hearing, C attended court to be cross-examined over the live-link (YJCEA 1999 ss 18(1) and 24). The prosecuting barrister took defence counsel – both, not doubt, without wigs and gowns (YJCEA 1999 s 26) – to meet C. She was with her parents and both counsel thought she was content to give evidence. After this, and on his own, the judge went to see C and then announced to the court that C was unable to participate in the proceedings. Her only evidence was the video. She could not be asked any questions by the defence. Her parents gave evidence.

 

JP appealled on the ground that, because the judge had prevented any attempt at C being asked any questions he had not had a fair trial. His appeal was allowed. Of children giving evidence generally the Court of Appeal in R v Barker [2010] EWCA Crim 4  (per Lord Judge LCJ) said:

 

[42] The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished (emphasis supplied).

 

Call for law reform

 

Both areas of court process – contact arising from alleged violence and what proved violence requires in relation to contact – call for urgent law reform. That must include, on both points, reform of statute law. This will reflect the need for funding if alleged perpetrators are to cross-examine complainant of child witnesses in person. If statutory presumptions are to be altered for the protection of the children concerned, then this cannot be by practice direction. That is not enough if a parent against whom CA 1989 s 1(6) imputations are made against him/her who validly objects to what the proposed PD12J para 4 seeks to do.

 

And when all this is fully reformed, the Minister of Justice is urged to tell the Family Procedure Rules Committee that a practice direction is not sufficient to reform procedure. It must be as part of Family Procedure Rules 2010; it must span those parts of the rules which deal with children proceedings and with proceedings for domestic violence (FPR 2010 Part 10 and 12); and it must reflect the EU Charter and must take account of children’s evidence and views ‘in accordance with their age and maturity’ (Art 24(1) of the Charter).

Child’s evidence – Part 1: before and after EU withdrawal

Court of Appeal and hearing the child – or not…

In Re S (a Child) [2017] EWCA Civ 44, through a fog of imprecise chronology and unavailable evidence (or was it uncalled, in the case of the child?), the Court of Appeal were able to allow one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). She did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) By the time of the hearing before the judge M had left United Kingdom to live with her husband in Ireland; but, after A was made a ward, she returned to UK to apply to the UK court to relocate.

The parents had a short relationship which had ended in August 2010. The appeal related to findings made by the judge before whom a series of contact applications (starting in the family proceedings court) had finally arrived. He had a schedule of 14 allegations made by the mother. He found three proved, the remainder he rejected. The first two were general, namely that F had behaved in a controlling way towards M throughout their relationship and that he was violent towards her, this being exacerbated by drink. The third proved allegation related to a specific event when the father assaulted the mother, grabbing her around the neck and throwing her to the floor. The last item on the schedule was a recital of cautions and convictions of the father, which the father accepted was accurate and the judge treated as a matter of record.

Evidence from the child: mother’s case rejected by the judge

Of the remaining ten sets of allegations made by M, all but one were rejected by the by the Court of Appeal. The judge had not accepted the ground which arose partly from what A had said. (The judge did not hear what the child had to say about it: this article returns later to the absolute right of the child to be heard.) On this ground the Court of Appeal allowed M’s appeal. It arose from what A had said to a family support worker (S), combined with the fact of a ‘conditional caution’ – for which there must be an admission by a suspect – that F had injured the children a later girlfriend.

Black LJ (who gave the main judgment) explained the factual back-ground when S had seen A, as follows. :

[27] … The judge had available to him [S’s] written report of what A said to her. In it, S explained that she had been working with the family since February 2013, helping to “manage their high levels of anxieties”. It seems that the visit during which the material conversation occurred was her third visit and took place around mid-July 2013. There is no suggestion in her report that the visit was in any way a response to A’s account of his father’s actions during contact. Ms Solway described how, during the visit, she spent some time with A in the kitchen and then in his bedroom. She said that he was enjoying a story book when he asked “unexpectedly” whether she was going to help him to get a particular person to stop hurting him, demonstrating to her how the person had grabbed his arm. He identified the person concerned by his forename only, the forename being the same as the father’s.

The judge had said that ‘the allegation was a serious one’; but then had rejected the allegation and not given it full consideration said the appeal court. Black LJ explained this:

[30] … It seems to me that his handling of the issue fell short in a number of ways. It was incumbent upon him, I think, to deal more fully with what was quite a graphic description by Ms Solway of A’s apparently spontaneous demonstration of events to her. The judge stated baldly that he was unable to rely upon what A had said and gave very little explanation as to why he took that view, except perhaps that there was no mark on A. As for the caution, he said in responding to the request for clarification that he “took no account of [the father’s] previous physical chastisement of children” (my emphasis). He might ultimately have concluded that the father’s actions in relation to the other children did not assist him particularly in his decision about what happened to A, but he did need, in my view, to consider the evidence about those actions specifically and to explain expressly how he dealt with it in making his decision. Furthermore, the judge should also, in my view, have given consideration to whether the findings that he had made about the father’s violence towards the mother contributed anything to the issue in relation to A.

Black LJ therefore set aside the finding that the assault on A did not take place. She remitted the allegation for hearing by another circuit judge (though no reference was made by her to Art 24 (below) or as to whether A will speak to the judge).

Modern questions of legal principle

These facts in relation to this particular case raise a number of live questions of law, both in relation to EU law and family proceedings; and as to other areas of changing family law. In summary these are as follows:

  • Child’s rights and Art 24 – This article looks at the appeal and asks how might the same case have been dealt with if Charter of Fundamental Rights of the European Union (2000/C 364/01) (‘the Charter’) Art 24 (and its expression of the rights of the child) been taken fully into account.
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal).
  • Relocation to Ireland and further hearings about A – And speculation for the future: how might contact be dealt with after EU withdrawal if A goes to Ireland (which will remain in EU) where the mother wants to live.

Rights of the child under EU Charter of Fundamental Rights

The Charter defines rights, some of which are replicated in European Convention 1950, for all EU member states. It is part of EU and UK law since the Lisbon Treaty of 2009. It is enforceable in the European Court of Justice. Presumably it will go with EU withdrawal.

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

So what were A’s rights in these proceedings; what light could he have shed on what happened; and what (if anything) will happen to those rights with EU withdrawal? The first thing to say is on children’s views and their evidence (dealt with more fully in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 19). A child’s evidence may be as to relevant facts, or as to expression of a view on outcome. Had A been permitted to ‘express a view’ in these proceedings (as Art 24(2) guarantees: it is not clear from the report whether the judge offered this) he could have spoken to the judge about both: what had happened during when he was ‘hurt’ by F and as to whether he had a view on the future of contact. He is competent to give evidence; but as to how would be for the judge.

These two aspects of hearing a child have been considered by Lady Hale. She explained giving of evidence by a child in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 (evidence from a 12 year old as to sexual abuse by her father) and the means by which this could be done (it seems the hearsay evidence of S was not accepted by the judge):

[28]   The family court will have to be realistic in evaluating how effective it can be in maximising the advantage [of the child giving evidence] while minimising the harm [to the individual child]. 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 videoed cross-examination as proposed by Pigot. 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.

From a reading only of the law report, it is difficult to see how harm to A would outweigh the longer-term advantage to his welfare of his giving live evidence, if he is indeed at risk from further ham from his father. And this is a question which a court must surely answer under Children Act 1989 s 1(6) (contact between child and parent, unless risk of harm: to be considered later in this series)?

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 the House of Lords was dealing with a child of the same age as A. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

[57]   There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

In neither instance is need the child be subjected to intense cross-examination as might be an adult; but it is the child’s right to be heard in way which was not obviously the case – certainly the child was given no role by Black LJ in the appeal – in this case.

Child having an ‘opportunity to be heard’

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was expressly taken into consideration and the question of a child being heard was raised to a ‘fundamental principle’ of English child law (and see Evidence in family proceedings (above) at Ch 19 Pt 6). In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 – slightly younger than A – when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

In Re D Ryder LJ treated the child as having ‘the right … to participate in the process that is about him or her’ (§44). He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case. This is supported also by United Nations Convention on the Rights of the Child 1989 Art 12:

(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). Of the list in s 1(3) he held s 1(3)(a) – that the court shall consider the ascertainable wishes and feelings of a child – to be a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded:

[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

Children and EU law

And what of the child’s right to be heard in Europe? United Nations Convention on the Rights of the Child 1989 Art 12 (by which UK will still be bound, so far its provisions are enforceable) is in similar terms to Art 23 of the Charter as to a child’s right to be heard in ‘judicial proceedings’, and where that child is capable of forming his or her own views (and see Ryder LJ in Re D [2016] (above)).

In UK law, the child’s wishes and feelings are considered by the court in the light of the child’ ‘age and understanding’ (a factor to be considered in Part 3). It may be a distinction without any real difference; but the Charter and UN Convention express these principles as a right. In UK it is permissive. The present Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 set out their purpose as being to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings.

The Charter will go with EU withdrawal. It remains to be seen whether UK judges develop its concept of child’s rights (as distinct from their views being taken into account); or whether they will take the more passive approach implied by the UK sources referred to above. And then, as will be considered later in this series, it remains to be seen whether any of the rights now attaching in English proceedings, will be salvaged from the EU withdrawal wreckage; or will English and European courts brandish differing rights of issue and enforcement of proceedings?

Is it rational to trigger Article 50?

EU WITHDRAWAL AND PRIME MINISTER’S REASONS

 

The present Government proposes that the United Kingdom withdraw from the European Union following a referendum on the issue in June 2016. A Bill giving the decision on triggering the process to withdraw to the Prime Minister is going swiftly through Parliament. This article considers how a Prime Minister must exercise her judgment in taking that decision, by considering the following questions:

 

  • Discretion and reason – What is discretion and exercise of judgement; and how is it affected by operation of the rationality of the decision-maker (ie the Prime Minister in this case)?
  • Referendum result – How does reason apply to the referendum result; and how far was the result ‘advisory’?
  • Rights and EU withdrawal – How does the treatment of rights in EU withdrawal apply to an exercise of reason?

 

The EU withdrawal issue has been twice before the courts in recent months: before the Divisional Court in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html) and the Supreme Court as R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 (http://www.bailii.org/uk/cases/UKSC/2017/5.html). They will be referred to as Miller 1 and Miller 2 respectively.

 

These cases resolved only whether the Government must have Parliament’s permission – that is, an Act of Parliament – for the Prime Minister to trigger the process for UK’s coming out of the EU and by activating Treaty of European Union 1992 Article 50. At the time of writing there is a Bill before Parliament (set out below) which will do what the two courts said the Government must do.

 

This article concerns only the narrow point of what should operate on the mind of the Prime Minister when she considers the rationality of whether or not to trigger Art 50. In particular it will look at this in the light of two points: (1) the advisory nature of the referendum and (2) the rights of UK nationals and EU members engaged.

 

 

DISCRETION, JUDGEMENT AND REASON

 

Exercise of discretion

 

Any Minister to whose job is to exercise a discretion, or judgment in the making of a decision, must exercise it rationally. If judgment is exercised by a Government minister it must be exercised wisely and according to the law. It must be exercised according to reason, and not in an arbitrary way. Administrative Law (2014) Wade & Forsyth (11th Ed), often quoted by

 

A minister’s reasoning depends on appropriate information being provided to him/her. If appropriate information is provided and understood the minister has a firm foundation for making a decision. If there is a choice of courses, the minister decides by exercise of discretion. That exercise of discretion is governed by the same legal principles in 2017 as over 400 years ago in Rookes Case. In that case in 1598 the report, by Edward Coke, later Sir Edward Coke, said of the exercise of discretion of commissioners of sewers:

 

That they should do according to their discretions, yet their proceedings ought to be limited and bounded within the Rules of Law and Reason; for that discretion is a Science to discern betwixt falsity and truth, between right and wrong, between shadows and substance, betwixt equity and colourable glosses, and the Commissioners ought not to follow their wills and private affections;

 

The rationality of any exercise of discretion can always be brought into question. Statutory power is, in a sense, vested in a minister on trust for the governed as a whole. Therefore ‘unfettered governmental discretion is a contradiction in terms’ (Administrative Law (above) at p 295). The modern statement of the law on this is Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924 where a majority (four to one) in the House of Lords refused to permit a government minister to act in a way which, they said, was no in accordance with the Act of Parliament under which he proceeded (in that case with complaints from farmers about a Milk Marketing Board pricing scheme).

 

Lord Reid explained his view of the law after first saying that, it seemed to him, that the minister was trying to argue that there could only be ‘two possible interpretations of this provision either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.’ Lord Reid refused to accept this argument by the Minister:

 

I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

 

Prime Minister’s discretion

 

That is, according to Padfield, it is necessary to find out first what a relevant Act intends. The problem with the European Union (Notification of Withdrawal) Bill – and it is still a Bill – is that it does not say what it intends beyond giving authority ‘to notify’ the UK’s intention to leave the EU. Clause 1(1) says, under the heading ‘1 Power to notify withdrawal from the EU’:

 

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

 

And therein lies the discretion: the Prime Minister ‘may notify’. She has to decide. In so doing she must act rationally. Underlying that rationality question it is critical for her to be clear – and preferably to say that she is clear – what is meant by the 2016 referendum. Secondly, she needs to understand as fully as possible what will be changed adversely to those she represents – the UK nationals affected in the variety of ways involved – as a result of triggering Article.

 

The first of these points – the advisory nature of the referendum – has been explained to her, or for her, by the High Court and Supreme Court. The second could not have informed the electorate’s mind when they voted in the referendum – as she well knows. She knows this because neither she nor the army of civil servants working on the question have begun to give her an informed view of it all – eg by presenting or publishing a draft ‘Great Reform Bill’.

 

So that takes us back to Coke and what is meant by the discretion she has been given by s 1(1) and how she exercises it.

 

 

THE REFERENDUM

 

Meaning of the 2016 referendum

 

The referendum issue can be approached in this way. In December 2015, the UK Parliament passed the European Union Referendum Act 2015. The ensuing referendum on 23 June 2016 produced a majority of those who voted, favour of leaving the European Union. UK government ministers then announced that they would bring UK membership of the European Union to an end.

 

The effect of any referendum said the Supreme Court in Miller 2 depends on the following:

 

[118] … the terms of the statute which authorises it. Further, legislation authorising a referendum more often than not has provided for the consequences on the result. Thus, the authorising statute may enact a change in the law subject to the proviso that it is not to come into effect unless approved by a majority in the referendum

 

The 2015 Act did not state what the outcome of the referendum was to mean. It left what was to happen next open. No provision was made in the Act for the consequences of the referendum. The earlier 1975 referendum was described by ministers as advisory, whereas the 2016 referendum was described as advisory by some ministers and as decisive by others. So how had ministers seen the question of outcome of the referendum, asked the Supreme Court:

 

[125] It is instructive to see how the issue was addressed in ministers’ response to the 12th Report of Session 2009-10 of the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom). The Committee included the following recommendation in para 197:

“[B]ecause of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”

The UK government’s response as recorded in the Committee’s Fourth Report of Session 2010-11 was

“The Government agrees with this recommendation. Under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

 

The courts and the referendum: ‘advisory’ said the High Court

 

So in 2010 ministers were told the referendum ‘cannot be legally binding’, and are therefore ‘advisory’; and in 2011 ‘Parliament must be responsible’ for any decision. In the Divisional Court in Miller 1 the judges drew attention to the parliamentary briefing paper No 7212 Pt 5.

 

[107] Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.

 

The ‘briefing paper’ referred to in §107 is set out in Annex 1 to this article. The passage which is likely to have been in members’ minds when they voted for the 2015 Act, and should be in Mrs May’s mind now, is in Pt 5 as follows:

 

[The Referendum Bill (as it was then)] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

 

The Supreme Court decision in Miller 2 was, in the end, expressed by the majority as simply as:

 

[124] Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.

 

 

RIGHTS AND EU WITHDRAWAL

 

EU rights lost by withdrawal: the judge’s view

 

If new legislation is planned the Government department publishes a green paper for discussion of a subject and for it to receive views. A white paper can then follow to set out Government policy and is likely to be followed by a bill setting out proposed new law. Here there has been a four line bill (awaiting its third reading as I write). There has been no green paper; and a white paper emerged from the Government whilst the bill was going through Parliament.

 

So what is the Government’s understanding of rights which may be lost – to EU nationals in the UK, and to UK nationals in the EU – by EU withdrawal? This should perhaps be uppermost in a reasonable Prime Minister’s mind if she considers the triggering of Art 50?

 

In Miller 1 the Divisional Court explained that under European Communities Act 1972 s 2(1) rights had been incorporated into – ‘given legal effect’ under – UK law (§§[57]-[66]). The court identified three categories of rights under ECA 1972 and EU law (a categorisation accepted by the Supreme Court: see Miller 2 at §69) which would be affected or lost as a result of EU withdrawal:

 

  • Rights capable of being reproduced in UK law;
  • Rights derived by UK citizens from EU law in other member states;
  • Rights of participation in EU institutions that could not be replicated in UK law.

 

The Supreme Court explained that, in general terms (at §69) ‘our domestic law will change as a result of the United Kingdom ceasing to be party to [the EU treaties], and rights enjoyed by UK residents granted through EU law will be affected’. The Supreme Court went on, at §§70-72 to give examples of these rights. For example in category (1), a lengthy paragraph included:

 

[70] … They include, for instance, the rights of UK citizens to the benefit of employment protection such as the Working Time Directive, to equal treatment and to the protection of EU competition law, and the right of non-residents to the benefit of the “four freedoms” (free movement of people, goods and capital, and freedom to provide services)….

 

The Divisional Court explained the consequences for these rights as follows:

 

[64] As to category (1) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer [by the Government] to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect….

 

What the Divisional Court said of category (2) rights included the following (italics added):

 

[65] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (2) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament.

 

The Prime Minister on rights

 

So what does the Prime Minister, who is to sign off Art 50(2), think of all this? We have her 17 January 2017 speech and the White Paper to test this. What do these say on the subjects? This and the white paper is the only real test, so far, of her reasoning on the subject. Her speech of 17 January said that

 

… we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

 

So what laws did she have in mind, bearing in mind what the judges had said on the subject:

 

We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can. I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now.

 

Mrs May suggests surprise in her speech that not all EU members will agree; and if they will not where does that leave category (2) rights? Is that of concern to her? She does not say. It is a matter which, it could be argued, should act on her mind before she triggers Art 50.

 

She then dealt with protection of ‘workers’ rights’. ‘A fairer Britain’ is a country ‘that protects and enhances the rights people have at work…. we will ensure that workers’ rights are fully protected and maintained.’ She did not distinguish between rights of workers in the UK, and of UK nationals in EU countries.

 

EU withdrawal White Paper: treatment of rights

 

The Government’s White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’, February 2017 (Cm 9417) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf) put a little flesh on the bones of Mrs May’s 17 January speech. (It is that White paper which included – with only one verb, ‘’s’, in the quoted paragraph (on page 3) – the remarkable: ‘And another thing that’s important. The essential ingredient of our success. The strength and support of 65 million people willing us to make it happen.)

 

The contents page of the White Paper is set out at the end of this article (Annex 2). It says the White paper deals with rights in two contexts only:

 

  • Securing rights for EU nationals in the UK, and UK nationals in the EU
  • Protecting workers’ rights

 

The White Paper does not attempt to list these rights nor to deal with them in the way that the two judgments do. Still less does the White Paper produce the Government’s promised – or is it? – Great Repeal Bill. Securing rights for EU nationals, and for UK nationals in the EU is dealt with in two page; and one of those pages is mostly graphs. The second page includes:

 

6.3 Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations…

6.4 The Government would have liked to resolve this issue ahead of the formal negotiations. And although many EU Member States favour such an agreement, this has not proven possible. The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.

 

These two paragraphs – on which the rights for the future a number of people depend – represents no substance: not what rights are engaged and how they will be dealt with, for example. As far as it goes – and that is not very far – it is little more than hope and a little recrimination. There is not reflection that if things like this had been considered with EU partners (as they still are) before a decision to leave, they might have been a little keener to help. Mrs May seems a remarkably naive negotiator, but perhaps that goes with bossiness.

 

‘Workers’ rights’ get even less: one page, two paragraphs and no graphs. And that is it on the rights sections. Compare the White Paper with the efforts to provide information in the two court judgements and that put into production of a White Paper which should have been in gestation since June last year, and you realise how this country is served by its judges as against by its government.

 

 

CONCLUSION: REASON IN EXERCISE OF DISCRETION

 

How to define the nut; defining the rights lost

 

In the case of R (Quila & anor) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, [2012] 1 FLR 788 (http://www.bailii.org/uk/cases/UKSC/2011/45.html) the Supreme Court were concerned with a Home Office regulation which – to help to combat forced marriages, it was said – raised the age for immigration to the UK for marriage to 21. Such evidence as there was suggested that many more unforced marriages would be impeded than forced marriages prevented. Had the Secretary of State (Mrs May, as it happens) acted rationally in deciding to agree to the regulation?

 

No said Lord Wilson (with whom three of the other four Supreme Court Justices agreed). She had identified a nut, but failed to identify the size of the nut to which she was taking a sledge-hammer:

 

[58] … The number of forced marriages which [the regulation] deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made…. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut.

 

Leaving the EU is the sledge-hammer which the referendum has advised Mrs May – no more than advised – to wield. One aspect of the nut – the problems which, it is thought, EU withdrawal would solve and the advantages it create – can no doubt be guessed at by any number of Brexit enthusiasts. But – the other aspect of the nut – a reasonable person must weigh all matters in the balance.

 

Rights of UK nationals and EU members to be lost

 

The factors the Prime Minister must put in the balance – and which she might have to explain to a High Court judge (the equivalent of the number of unforced marriages in the Quila case) – have not been explained by her to us. The White Paper does not do it. Amongst these factors, it might be thought by her, are the loss or disruption of many rights which go for EU members in the UK and UK nationals in the EU; workers’ rights; rights on family breakdown and for children if parties live in UK and EU respectively. Many more such rights have yet to be clarified and their future enacted into draft legislation. (Had they been defined by a Government department it is most likely we would have a draft ‘Great Reform Bill’ by now.)

 

It is the Prime Minister’s decision if the Bill is passed. She does not have to say how she reaches her decision, but the less she says the more she may have to explain later. Within the range of the two areas covered in this article – the size of the rights ‘nut’ and an understanding that the referendum was ‘advisory’ of MPs only – it can be said of the Prime Minister’s decision that two conclusions follow.

 

First, for the Prime Minister to proceed on the basis that she must withdraw UK from the EU because it is the ‘will of the people’ is wrong. Constitutional principle (supported by the 7212 briefing paper (Annex 1 below) and the Divisional Court and Supreme Court) is that it is a decision for her and MPs. This decision of MPs takes into account, only, the referendum outcome. Secondly, without setting out fully and clearly what rights will be lost and with what consequences she expects for those affected the Prime Minister cannot rationally exercise her discretion to trigger Art 50.

 

The combination of both grounds makes any decision at this stage open to a challenge that it has been arrived at irrationally; and if challenged successfully, that it could be declared void by the High Court.

 

David Burrows

8 February 2017

© David Burrows, Paris 2017

 

 

ANNEX 1

 

Extract from Briefing Paper

 

  1. Types of referendum This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented. In the event, there was a substantial majority against any change. The 1975 referendum was held after the re-negotiated terms of the UK’s EC membership had been agreed by all EC Member States and the terms set out in a command paper and agreed by both Houses.64

 

 

ANNEX 2

 

Contents page of White Paper

 

  1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.
  2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.
  3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.
  4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.
  5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.
  6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.
  7. Protecting workers’ rights – We will protect and enhance existing workers’ rights. 8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.
  8. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world. 10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.
  9. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.
  10. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

 

Domestic violence children contact and a new PD12J

What does the law say?…

 

The heading of the Marilyn Stowe blog by Paul Apreda, the National Manager of the Welsh charity FNF (Families Need fathers), Both Parents Matter, Cymru entitled ‘Are the best interests of the child no longer paramount?’  is controversial, perhaps deliberately so. It refers to the draft practice direction (PD), which in its present form is entitled Family Procedure Rules 2010 Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (‘PD12J’).

 

In this note, in an attempt to provide clarity in any debate, I should like to look at the statutory principles in issue, namely Children Act 1989 s 1, described by Paul Apreda as the ‘corner stone’ – the paramountcy principle – of children law. Section 1 was extensively amended by Children and Families Act 2014 (CFA 2014). I want to look at the words – just the words – and what they may mean in their legal context. I will try to do that without PD or parental feelings overlay.

 

A number of amendments to the present version of PD12J are proposed in a report to the President of the Family Division, Sir James Munby, by Cobb J . The controversial (as between Cobb J and Paul Apreda) passage in PD12J is, as proposed by Cobb J (with the original shown here as deleted) is:

 

4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.n [I pick up the n below] The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

Cobb J’s report is published by Sir James Munby with his 16th View from the President’s Chambers ‘Children and vulnerable witnesses – where are we?’ . Sir James comments on the report, but seems to accept what is recommended for the redraft of para 4.

 

Law reform, Henry VIII and a practice direction

 

Paul Aspreda makes his position on this passage clear from his opening paragraph:

 

Stephen Cobb is a very senior Judge in the Family Court. He is a remarkable man. He recently proposed an effective end to the paramountcy principle – the overarching golden rule in family proceedings that the best interests of the child are paramount. But not content with demolishing the corner stone of the system, it looks as though he may believe the family courts can overrule the will of Parliament too.

 

In doing this he picks up an argument, also mentioned in my ‘Domestic violence & family proceedings: Practice direction amendments to protect vulnerable witnesses & children’ (). How appropriate is it to legislate by PD? As I explain later, it cannot lawfully be done. The point is developed by ‘Lucy R’ in ‘Imaginary judges use imaginary powers to reform imaginary law’ where she says (of ‘judges’ but she is speaking of a PD):

 

Judges can’t changes the law. Parliament changes the law. In this case, Parliament does it by approving a Statutory Instrument that amends the Family Procedure Rules. That Statutory Instrument comes from the Family Procedure Rules Committee, a committee created by Parliament, which the judges don’t control.

 

It is not even as simple as that. If a rule tries to change the law, it can only do so in the rare events that Parliament says it can. Otherwise it is known as that form statutory instrument frowned upon by constitutional lawyers, namely a Henry VIII clause (as explained by the Supreme Court recently in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 9: where the Legal Aid Agency (‘LAA’) tried to change a law which Parliament had already made). As matters now stand only Parliament can change the law in this area; or it can be done by rule-makers and approved by Parliament.

 

As to the lesser form, practice directions: a PD cannot change the law (as I hope to show). Paul Aspreda’s assertion as to the proposed PD change raises important questions:

 

  • What is the law in this area: Act of Parliament and PD?
  • What does the law say and mean?
  • How can it be changed, in particular can it be changed by practice direction?

 

Children Act 1989 s 1 and PD12J

 

The two sources of law which run through this discussion are the post-2014 CA 1989 s 1 and PD12J para 4. Cobb J has proposed the amendment to para 4 (amongst a number of others) in a report to Sir James Munby P. This note will set out the relevant bits of CA 1989. My review of the proposed PD amendment depends on a careful reading of the words in s 1. Considerable effort went into making the original Act as clear as possible for all readers. I am sorry to say, the 2014 amendments have made the waters of that relatively clear statutory drafting a little muddy; but that is what we must work with.

 

CA 1989 s 1 is designed to give first priority to the welfare of any child involved in any proceedings. So far as relevant to this article s 1 says:
1 Welfare of the child 

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

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

(3) In [making an order], a court shall have regard in particular to –

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;..

(e)any harm which he has suffered or is at risk of suffering;

 

As can be seen sub-paras (2A) and (2B) have been added. This was by CFA 2014, which also added s 1(6) and (7). I do not think it oversimplifies the amendments to say that paras (4)(a) and (7) refer to applications for child arrangements orders and parental responsibility orders. I will come back to para (6)(a) after looking at the parts of the PD which concern Paul Aspreda, and which affect parents who have been separated from their children in the context of domestic violence proceedings.

 

Lawfulness of PD12J

 

A practice direction is made by the President of the Family Division only, with approval of the Lord Chancellor (ie Ms Truss: see Courts Act 2003 (CA 2003) s 81). It does not go through any democratic process like an Act of Parliament (voted on by MPs) or court rules (eg Family Procedure Rules 2010, mentioned above). Practice directions do no more than deal with ‘the practice and procedure’ of family courts proceedings (CA 2003 s 81 and Civil Procedure Act 1997 s 5). As can be seen, a PD is relatively far down the legislative chain of legal force and reproduction.

 

CA 2003 s 81(2) says that family law PDs are made by the President (as explained above) are intended to govern ‘the practice and procedure of [family] courts in family proceedings’. The meaning of a PD, in general civil proceedings terms, was further explained by the Court of Appeal in U (A Child) v Liverpool CC [2005] EWCA Civ 475, [2005] 1 WLR 2657 by Brooke LJ. After citing the cases which say more about what PDs are, he said:

 

[48] …. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

 

It follows from this, that a parent (perhaps most often a father) is entitled to ask – as does Paul Apreda – whether the revised para 4, if brought into effect, is dealing only with ‘practice’ (per s 81(2) and U v Liverpool; it is certainly not ‘procedure’). Or if, in reality, and in law, is the PD seeking to legislate? Does it attempt to set out ‘statements of law’, which the Court of Appeal says is ‘wrong’, that is, is it unlawful?

 

The aim of PD12J is set out at para 2: it is ‘to set out what the Family Court is should (sic) do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse’. It defines ‘general principles’, and then deals with specific procedural matters where domestic violence is suspected or has been proved. Para 4 (set out above) is the first of the ‘general principles’; and Cobb J says of this in a foot note:

 

Para.4: The statutory presumption in section 1(2A) CA 1989 applies “unless the contrary is shown”. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm;

 

Children Act 1989 s 1 amendments

 

The CFA 2014 reforms centre (as do Cobb J’s proposed changes) mostly on s 1(2A) and (6), which is as follows:

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

When the court is making a child arrangements order three factors arise; and these lead into and help to explain Cobb J’s proposed para 4:

 

  • There is a presumption that involvement of a parent in a child’s life ‘will further the child’s welfare’ (s 1(2A): seems surprising this needs to be set out in a statute; that point is not in issue here); and that parents can be involved in a child’s life without putting a child at risk (s 1(6)); unless
  • There is some reason – ‘unless the contrary is shown’ (s 1(2A)) – why the s 1(2A) presumption should not operate; or
  • ‘… there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm…’ (s 1(6)(b)).

 

In a sense s 1(6)(b) is a particular aspect of s 1(2A): if 1(6)(b) is proved, the contrary to a child’s involvement is likely to be shown. But an aspect of s 1(6)(b) is ‘the child at risk’. Cobb J’s para 4 goes much wider. It is repeated here (I have added the italics and boldened ‘other parent’):

 

4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.

 

‘…unless the contrary is shown…’

 

Adding ‘other parent’ to the proposed para 4 seeks to alter the law in a radical way. Children are the subject of protection in s 1, not any ‘other parent’. ‘Other parent’ was not included in the 2014 Act. Perhaps it should have been, but it was not. CFA 2014 received Royal Assent on 13 March 2014. If Parliament had wanted a particular interpretation to be placed on its words it would have said so, or it could have added those words to s 1(6). And if that is right, and if a PD is not the place to change the law, I would expect a challenge by a disgruntled parent – probably a father – before long; and that will only add to the unhappiness of another couple and their children.

 

Alternatively, a High Court judge, after hearing argument on the meaning of s 1(2A) and (6) in a particular case could tell us all what ‘… unless the contrary is shown…’ means in this context. With respect to the President of the Family Division – who when making a PD is an administrator not a judge – a PD is not lawfully the place to change the law; and this is so however well-meaning may be the intended Presidential reform. That is not what PDs are for.

 

Lucy R comments on the proposed para 4:

 

The problem is that this new version of paragraph 4 is that it isn’t what the actual statute says. And it is far from uncontroversial to say that the presumption put in place by parliament requires “contact at all costs”. The presumption is very carefully crafted so that where evidence is provided to show there is risk (which might be arising from domestic abuse or something else) that can’t be managed the presumption is disapplied…

 

There may be many cases where violence or other behaviour against the other parent – if proved – will mean that ‘the contrary is shown’. The presumption of involvement in a child’s life by a parent should be reduced appropriately (s 1(2A)). But this should be regulated by judicial decision in each case, not by the essentially undemocratic practice direction. And particularly it should not be done where something could have been said by Parliament in an act – Children and Families Act 2014 – which is not yet three years old.

 

Cobb J’s proposals have entirely understandable and laudable aims as fully explained by him in his report. They may not be lawful if introduced in a way which the law should not recognise. And if the PD seeks to change statute law – as it seems to do – it would go even further down the Henry VIII route even than did the LAA and Lord Chancellor did in changing legal aid eligibility. Changing the law is a long and winding, if well planned out, road; and most would say, so it should be if it is to be fair.

On-line divorce scheme: an update…

Users to be recruited for on-line divorce system

 

At the end of January a practice direction was added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title; but it was not clear how to gain access to the new scheme. This has been explained by HMCTS.

 

After publication of PD36D inquiries were made of Ministry of Justice and of Family Procedure Rules Committee. These inquiries elicited the response that HMCTS are in the first phase of the pilot. Potential users of the new scheme will be personally invited to use the system and given access following a screening process at the pilot site. Therefore, at this stage in the pilot, access to the pilot is controlled whilst HMCTS build confidence in the system for any wider use. The pilot is being run at the East Midlands Divorce Unit in Nottingham and HMCTS are currently recruiting users in the local area to participate in the pilot. How these ‘users’ are chosen, is not stated.

 

With this in mind, I have updated my note of 31 January 2017 (https://dbfamilylaw.wordpress.com/2017/01/31/on-line-divorce-scheme/). Subject to that I have retained most of the original text. The ‘system’ represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

Lawfulness of rule changes

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). That said, I am concerned that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4) (CA 2013)) which enables the rule-makers to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (CA 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274). However, there is nothing to say a practice direction (which is a lesser statutory species) can alter a rule.

 

PD36D says that where it ‘applies’ an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ (CA 2003 s 75(5)(b)). When it comes to amendment of rules I am anxious as to whether this PD is lawful (as explained above: the President using a practice direction to alter a rule, which originally is made by a statutory body). And is it ‘simple’ or ‘simply expressed’? This is a field where the scheme must be designed for use by private individuals who are proceeding without a lawyer (litigants in person). This one of a number of questions HMCTS will, no doubt, want to answer.

 

Further thoughts on the clarity of the scheme include:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the PD speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority). Let us hope HMCTS can be clear on terminology, and that – in the usual way – a statute takes priority over a rule.
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce: same points as above apply.

 

The new PD has had some publicity amongst family lawyers. It would have been helpful for the plans for it to have been made more public, and for PD36D to have had an explanatory note – something which goes out with all statutory instruments – so all of us knew what was intended by it. It would have been of value if that note had included:

 

  • That the new pilot system applies to all divorces from [a date] for [the individuals who are to be targeted by the scheme]
  • Whether or not it is compulsory for those chosen
  • Where information about the scheme can be found at [link to site]
  • Any information about the data collected, confidentiality etc.

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should please have been amended by another rule. It is sobering to think that someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, and the petitioner has remarried, that could be bigamy, and another petition – nullity this time – may be involved.

 

This, perhaps, puts a duty on the respondent’s adviser who is troubled by the legality of these rules. I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).