Sir Henry Brooke and human rights

20160419_170156Mubarak and the right to a fair trial

 

A great lawyer and a man concerned for rights, and that they be protected by legal aid, died yesterday. I am not qualified to comment on his life or his many achievements. However my professional career has been influenced by two cases which go to his concern for the rights of individuals in legal proceeding, and to the importance of European Convention 1950 rights.

 

In my many years of defending individuals (almost invariably men) who were taken to the magistrates’ court by Child Support Agency (Child Support Act 1991 s 40A) and their imprisonment sought for alleged arrears (which the Agency were not required to prove) I came to rely on the judgements of the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698 (Judgment: 14 December 2000). In that case Sir Henry, then Brooke LJ sat with Thorpe LJ and Jacob J and started his judgment – ‘a few words of my own’ – with:

 

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

 

Mr Mubarak was no angel. However, the case shows that entitlement to rights – ‘human rights’ – does not discriminate: rich or poor; male or female; or on grounds of gender or transgender; or religion or race. Mr Mubarak was an international jeweller who was ordered, following a hearing where he had submitted fraudulent evidence, to pay his former wife just under £5M. On his failure to pay the first £3M the wife issued a judgment summons under the then rules and in accordance with Debtors Act 1869 s 5. The wife stated simply that the husband had not paid the money which he had been ordered to pay. In a judgment which also considered the court’s inability to enforce the lump sum order against the husband’s companies, the judge made an order on the judgment summons, committing the husband to prison for 6 weeks, not to be put into force if the husband paid.

 

On the husband’s appeal and on his argument that the judgment summons procedure was not Human Rights Act 1998 compliant, the Court of Appeal agreed with him. The effect of the procedure was to require an alleged contemnor to provide evidence for his accuser; that is to self-incriminate.

 

Debtors Act 1869 s 5 in the twentieth century

 

Debtors Act 1869 s 5 provides a still-surviving Victorian procedure which, even 25 years ago, was described by Waite J (in R v Luton Magistrates’ Courts ex parte Sullivan [1992] 2 FLR 196) as

 

The power under s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.

 

Sir Henry’s was a classic of modern Human Rights Act 1998 informed procedural analysis. A person must know the case against them, and cannot be required to make their opponents case for them. He started with the case which lead to CPR 1998 rules being amended, Newman v Modern Bookbinders Ltd [2000] 1 WLR 2559 where Sedley LJ set out principles of general application to all cases of civil contempt which were going to be caught by European Convention 1950 Art 6:

 

[46]… Although the facts of that case are very far removed from the present, Sedley LJ spelt out the requirement for clarity of procedure and also the requirement that a person who faces what is now to be regarded as a criminal charge under Art 6 of the Convention should understand in detail the true nature and cause of the accusation against him. In para 26 of his judgment, Sedley LJ pointed out that this was one of the rights known longest to the law of England, ‘since, at least, the moment 350 years ago when John Lilburne demanded and finally obtained the sight of the indictment on which he was to be tried’.

 

An application to commit amount to a criminal charge and therefore Art 6.3 applies. Debtors Act 1869 s 5, he says, puts the onus correctly on the debtor to prove a case, which may then be followed by a means enquiry:

 

[56] What follows in s 5 is a procedure for a means inquiry. It reads: ‘Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.’

 

Privilege against self-incrimination and European Convention 1950

 

This both Brooke and Thorpe LJJ emphasised obliged ‘[57] …. the person who is facing what is now to be regarded as a criminal charge is to be cross-examined on oath as part of the same proceedings as part of the process of gathering evidence for the charge against him. That procedure cannot remain in place under European Convention 1950: nobody is obliged to incriminate themselves.’

 

And Sir Henry went on to explain how the then procedure in family proceedings (now modernised under FPR 2010 Pt 33) put ‘the burden of proof upside down’; and he concluded with a reminder then – in late 2000 – of the importance of the Convention:

 

[62] I have mentioned the requirements of the Convention. So far as they are relevant for current purposes, Art 6(1) requires ‘a fair and public hearing’. Article 6(2) requires that ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’… Article 6(3) provides that:

‘Everyone charged with a criminal offence has the following minimum rights:

(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him [the John Lilburne point];…

(d)to examine or have examined witnesses against him …’

[63]   Both these requirements seem to have been completely overlooked

by Mrs Mubarak’s former advisors when preparing their case in these proceedings.

 

Proceeds of Crime Act 2002 Part 7

 

Sir Henry gave the judgment of the court (himself, and Mance and Dyson LJJ) in Bowman v Fels [2005] EWCA Civ 226, [2005] 2 FLR 247. That case was of personal interest to me. Many family lawyers – including Dame Elizabeth Butler-Sloss P and Mostyn QC – believed the Proceeds of Crime Act 2002 Pt 7 meant lawyers must breach their clients’ privilege and pass confidential information to Government agents. I did not believe the Act meant this; but I was in a minority of one on the SFLA (Resolution) committee. I had no choice but to resign from the committee in January 2004. Bowman v Fels showed that I had been right, though y then it was much too late to go back to my job.


[86] There is nothing in the language of s 328 [the section which was said to cause privilege to be overridden] to suggest that Parliament expressly intended to override legal professional privilege. In his speech in R (Morgan Grenfell & Co Ltd) v Special Commissioner for Income Tax [2002] UKHL 21, [2003] 1 AC 563 Lord Hobhouse said at paras [45]–[46]:

‘[45] It is accepted that the statute does not contain any express words that abrogate the taxpayer’s common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect…. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

‘[46] In the present case the statutory language falls a long way short of meeting this criterion.’

[87]…Much stronger language would have been required if s 328 could be interpreted as bearing a necessary implication that legal professional privilege was to be overridden. As Lord Hoffmann said in R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115 (see para [81] above): ‘Fundamental rights cannot be overridden by general … words.’ For these reasons, even if s 328 does apply to the ordinary conduct of legal proceedings, it does not override legal professional privilege.

 

And there the subject has rested…

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Precedent, or just a law report?

20170722_161644Common law and law reports

 

The prompt for this article came from the fact that increasing numbers of judgements are being published by BAILII which can be published; but some of them cannot be cited in court. That is not to blame BAILII: they perform a brilliant public service in making so many judgments available online. They are not to know – if they are sent a judgement by a judge it is likely to be published – whether it can be cited or not; and therefore whether (perhaps) it should be published. (I have dealt with this before.)

 

The problem is compounded by the variety of set of family reports. Rather than – as with eg Chancery, Commercial, QB and so on – family law have three sets of reports: one for the Family Division (High Court judges), one for Family Court with a High Court judge sitting and one for the rest of the Family Court (mostly circuit judges). Of those the last – if the 2001 practice direction referred to is treated as law – may not be cited unless they have a 6.1 certificate (as explained below).

 

And to that three must be added family cases in Court of Appeal and Supreme Court (plus Upper Tribunal child support cases for the very conscientious). It is these and the High Court cases which, in reality, create the law; or move the law along a gradual path, as Lord Bingham described it. So

 

  • How does the law of precedent work (in outline); and
  • What may a party, or their advocate, cite in court?

 

Common law: English and Welsh law and lawyers

 

First, English and Welsh law (called ‘English law’ here): this consists of common law and statute law (Acts of Parliament) which can create fresh law (and override common law); or it can set out the common law in an Act of parliament (for clarity’s sake). Common law is what judges over the years – sometime the centuries – have said is the law.

 

For example, the rule that English court proceedings are always in open court is a common law rule, now confirmed by the European Convention 1950 on human rights (Article 6.1), but its origin and its operation and when privacy exceptions apply remain common law. The common law position is further explained by court rules for civil and (separately) for family proceedings. The rule that a person can discuss his or her legal problem with a lawyer in complete privacy is entirely a matter for common law. You’ll not find a definition of the rule – legal professional privilege – in any statute.

 

So how, in a little more detail, is the common law made up? Most cases at High Court (including the administrative Upper Tribunals) and higher (ie Court of Appeal and Supreme Court) levels make up the common law, when they deal with a question of law. They become precedents to which reference may then be made in appropriate cases. They help to make up the substantial patchwork which is the English common law.

 

Cases below that level are not precedents. Nor are cases where the decision turns only on the facts or which show a judge exercising discretion (that is deciding a case where the judge him- or herself must decide as a matter of preference – not of law – which way to resolve the case).

 

Citations practice direction

 

Decisions which turn on a question of law and explain what is the law can be precedents at the appropriate level of judge. This is set out in a practice direction issued by the then Lord Chief Justice, Lord Woolf:  Practice Direction 9 April 2001 Citation of Authorities. The practice direction stated that, in the case of certain lesser judgments they could be cited only ‘if they fulfil specified requirements’ – ie that, in the opinion of the judge who made the judgment, they made law. The practice direction, in para 6, listed the lesser judgments as:

 

  • Applications attended by one party only;
  • Applications for permission to appeal;
  • Decisions on applications that only decide that the application is arguable;
  • Cases in county courts and the Family Court.

 

Any cases in these categories cannot ‘be cited before any court’ (even though, for example, the case was in the Court of Appeal) save if the case ‘clearly indicates’ that it sets out ‘to establish a new principle or to extend the present law’; and that it says so in the judgment. I shall call this a ‘6.1 certificate’ (ie based on para 6.1 in the practice direction).

 

An immediate problem with this is that the relevant judges do not all seem to know about para 6.1 certificates.  A judge may make an interesting legal point but does not know that for it to be cited to a higher judge they have to include a 6.1 certificate. By contrast Court of Appeal judges – if reminded – may remember to pick up the point where they refuse permission to appeal, but on grounds which may usefully be cited another day.

 

Thus in Norman v Norman (No 2) Practice Note [2017] EWCA Civ 120, [2017] 1 WLR 2554 a wife asked the court, long after an original order had been made to permit her to appeal against a judge’s order which refused to set aside the original order. The specialist family law reports have not so far published the judgment. ICLR have done, since it concludes, in class 6.1 certificate style, where King LJ says:

 

Mr Glaser submits that the matters dealt with in this judgment establish a new principle or otherwise extend the present law and seeks permission for it to be cited pursuant to the Practice Direction of 9 April 2001, notwithstanding it is a judgment refusing permission to appeal. I grant that application.

 

Judicial hierarchy

 

The system of precedent and of a more senior judge overriding a lesser is driven largely – and, to an extent, understandably – by the advocate’s obsession with rank. At the bottom of the pile are solicitors and legal executives. Next are rank-and-file barristers, then Queens’ Counsel (QCs), also barristers (and all of whom wear operatic fancy dress – wigs and gowns – in open court). Judges – the people who make the decisions which determine cases – start with magistrates who, though advised by a lawyer, are lay people. In precedent terms district judges (and tribunal judges) and circuit judges can only be cited where they attach a 6.1 certificate (which is rare).

 

High court judge judgments (with those of Upper Tribunal judges) create the common law, with those of the Court of Appeal and Supreme Court. The only way any of their decisions can be changed is by a higher court (eg Court of Appeal overrides a High Court judge). In theory a High Court judge can disagree with another High Court judge; but it is regarded as not in accordance with High Court judicial comity to do so.

 

The Court of Appeal must follow the decision of another Court of Appeal (stare decisis as explained the House of Lords in eg Davis v Johnson [1978] UKHL 1, [1979] AC 264) unless the earlier court overlooked a point of law (per incuriam) which, if taken into account by the later court would make the later court wrong also (a recent example of this happened in a family case in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, [2013] 1 FLR 1095). In rare cases the Supreme Court can alter one of its earlier decisions; and Parliament by new primary legislation – but not delegated legislation (regulations, court rules etc) – can alter any of the decisions and thus revise and reform the common law.

 

It should be rare, therefore, that decisions are cited in family proceedings in the part of the BAILII reports entitled ‘England and Wales Family Court (Other Judges)’ – indicated by a ‘B’ added, thus [2017] EWFC B49. A 6.1 certificate will be rare, perhaps, as many circuit judges do not know of the citation practice direction. The last point adds to the confusion: if the judges do not know of para 6.1, they probably do not know they should not be referring to, or relying upon, the excepted cases in their decision-making. They fail to shorten their judgements (and perhaps save themselves time), by refusing to be referred to circuit judge cases. One of the objects of Lord Woolf’s practice direction is thereby lost.

Legal aid for domestic abuse: a legislative morass

20170407_1851062.jpg

Legal aid for ‘domestic violence’

 

Human rights legislation may enable a judge to tell the Minister of Justice to answe: are your new legal aid laws lawful? One of the ironies of the Tory legal aid legislation in 2012 (in force from April 2013) is that its complexity increases in inverse proportion to the extent it enables people to consult lawyers to explain it. The more complex the legal aid legislation becomes, the more difficult it is to get help just to explain what it means.

 

Take domestic abuse. Even that has three definitions. The law calls it ‘molestation’ – a wide spectrum of behaviour which a person (mostly women) should not have to put up with. It is also called ‘domestic abuse’: perhaps to cover a wider range of behaviour than ‘domestic violence’, which is what legal aid legislation calls it. ‘Molestation’ is the term which the judges must apply.

 

In 1976 Parliament had finally begun to recognise the difficulties of trapped unmarried women and their children – ‘battered wives’ – who could not exclude their violent partners (as could their married sisters) from their homes. A 1976 domestic violence Act was passed. In 1978, early in life the Act the House of Lords (now Supreme Court) considered a case which asked whether Parliament meant to allow an unmarried woman to force a man from a home in his name.

 

Lord Scarman and domestic violence

 

Lord Scarman (a great twentieth century judge) defined domestic violence as: ‘conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. [So too is] conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home’.

 

A recent case in the Court of Appeal has stressed that judges have deliberately not defined the term ‘molestation’. The principle applies that – like an elephant – molestation is difficult to define; but a family judge knows molestation when the judge sees it. And so, it might be thought, should be the law for legal aid; but…

 

So what of legal aid for the abused woman (it is mostly women)? The Ministry of Justice announced in early 2018 (https://www.gov.uk/government/news/changes-to-domestic-violence-evidence-requirements-come-into-effect) in an orgy of self-congratulation: ‘Changes to evidence requirements in private family law disputes have come into effect. There will no longer be a time limit on abuse evidence…’. Eventually the reader realises the press release is about legal aid which may be available to victims of domestic violence or child abuse. ‘To qualify, applicants must provide objective evidence of the abuse while their case is also subject to means and merits tests.’ This ‘objective evidence’ is in a list of 22 paragraphs which tries to do exactly what judges and parliament has said should not be done: it tries to define what the ‘domestic violence’ elephant is.

 

Now, imagine you are a single mother – Kath – with two small children. You have been forced to leave home by your partner, Nick. He applies to a court for contact with the children. You say has been abusive, and occasionally violent; though there is no physical evidence – there are no marks on you to show a doctor. It is, in Lord Scarman’s words ‘impossible or intolerable [for you] or the children, to remain at home’. You are scared at the prospect of seeing him in court.

 

Can you get legal aid? You can’t pay for a lawyer to tell you. You have no money. You have minimal state benefits, Nick is paying no maintenance for the children, and you have debts which are out of control. No one will lend you the money to pay for a medical report (required, in your case, by the new regulations), still less to pay for a lawyer (even if the lawyer does not charge).

 

You try to find out from the internet whether you can get help. If you are patient – and perhaps internet savvy – you will find a definition of ‘domestic violence’ in the modern legal aid legislation (alluringly called Legal Aid Sentencing and Punishment of Offenders Act 2012). The type of help you want is at para 11 of Sch 1 to that Act (in all, 154 sections and 24 Schedules).

 

What the Act does not tell Kath clearly is that to get legal aid you need to refer to three factors, each in separate unnamed regulations: first to find out if you earn too much money (Kath passes that test); next, whether your case has a prospect of success; and finally for the evidence for legal aid (the regs in question here)?

 

There are 21 forms of ‘evidence’ listed (some of which leave me baffled). Only the medical report applies to Kath. Without the report she fails at the first hurdle. And even if she can pay, the doctor can only repeat what Kath says. But her lawyer could do exactly the same when they complete Kath’s legal aid application. The medical report, if it does not document injuries, is a legal aid placebo, just something for the Legal Aid Agency to put on Kath’s file.

 

Legal aid laws, unlawful

 

Let us stand back from the legal aid legislation morass. European Convention 1950 (ie human rights) says Kath is entitled to a fair trial. Legal aid must be made available or that right may be impeded. Because she cannot pay for a medical report she cannot get the evidence required by the swish new regulations. Without that she must face her former partner alone in court. He may pay for a lawyer (he earned the income in the household); but it is he who, she says, has abused her.

 

There is a strong argument that the legal aid laws are unlawful. They are impenetrable to the reader who needs them. People like Kath and her children may be denied a fair trial and will suffer. This is where Human Rights Act 1998 comes in. If the laws are so complicated and you – having no means to pay for a lawyer – are denied legal aid, then how can you get to court for any trial at all (or defend yourself)? You cannot get the fair – or any – trial to which you are entitled.

 

So Mr Gauke: how legal are you laws when it comes to legal aid and domestic violence?

Child’s views and court proceedings

EU Charter of fundamental rights and children

20160419_173301

Charter of Fundamental Rights of the European Union is to go on European Union ‘exit day’: ie the day that EU withdrawal finally happens and whatever other terms – or not – are negotiated by the politicians. Clause 5(4) of that the European Union (Withdrawal) Bill says: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. That means the EU Charter no longer be part of English law once ‘exit day’ has happened.

 

So what has that got to do with children law? For children themselves the EU Charter – though hesitatingly applied by judges and family lawyers – means a lot. That is because Art 24 of the Charter says that ‘in all matters which concern them’ children are entitled to ‘express their views freely’. As relevant here Art 24 says:

 

1 Children… 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….

 

As I will show, I do not think the statute law which English judges apply goes as far as that; though judge-made law – perhaps, and as explained below – will incorporate the equivalent of Art 24 into English law. Before I move on, however, I must also introduce United Nations Convention on the Rights of the Child 1989. This is an extensive set of aims for rights of a child to which UK is a signatory; but it is not enforceable in English courts. It does not have the force of law which – while it lasts – the Charter has.

 

‘Procedural rules of national law’ and UN Convention

 

The UN Convention Art 12 says:

 

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.

 

Even if it were enforceable in English law, UN Convention does not go as far as the Charter. Most important the views of a child – ‘opportunity to be heard’ – are of use under Art 12 only so far as a country’s ‘procedural rules’ apply. That is a get-out provision for a Government. A country has only to say, we don’t have appropriate ‘procedural rules’; and that can a child having any right to be heard. And – surely a matter of shame for English family lawyers? – it must be said that the English ‘procedural rules’ are sufficiently muddled (see eg Children Act 1989 ss 10(8) and 41 and Family Procedure Rules 2010 Pt 16) and indistinct, that it may be possible to say to a child that, as English law stands, there are no procedural rules by which a child may be heard; or am I being too harsh? That must be reviewed on another occasion.

 

The question which this article addresses is: how far will the spirit of Art 24 remain part of the common law – ie part of English law and to be applied by English judges – for children and in proceedings about them?

 

The importance of Art 24 is emphasised by Brussels IIA (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction… in Matters of Parental Responsibility ), which will also go on exit day, unless all EU family courts can come to an agreement by then – hardly likely, I fear – as to it future. Within Brussels IIA, its recital (33) says of Art 24 within the Regulation:

 

(33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union…

 

And then Art 24? Children ‘may express their views freely’. Will this passage survive EU withdrawal; and if it does so how is it to be operated more clearly than has been the case up to now? How will children know if it may apply to them; and how may they take advantage of it: in the sense of being able to say to say to someone? As a child, I have a right (by one means or another: see Lady Hale in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 at [59]) to say what I think about all this and to talk to the judge who is to decide my future.

 

Art 24 as common law; and ‘a fundamental principle of procedure’

 

Art 24 was considered by the Court of Appeal in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 alongside Children Act 1989 s 1(3)(a) (that in making a decision about a child the court must have in mind the child’s ‘wishes and feelings’ according to their age and understanding). The court was considering the future of a seven year old (David) in the context of Brussels IIA (due to go with EU withdrawal as well). The English court needed to consider whether a Bulgarian return order should be enforced in the UK; and for this a question was, had the Bulgarian court had given David ‘an opportunity to be heard’ (Brussels IIA, Art 23(b)). If they had not, was this ‘in violation of a fundamental principle of procedure’ of the UK?

 

David had not been given such ‘opportunity’ said Ryder LJ; this was not in accordance with the fundamental procedural principles (s 1(3)(a)) of English courts; so the Bulgarian order would not be enforced here. The Supreme Court gave leave to appeal, but set aside that decision: Re D (A Child) (Supreme Court: Jurisdiction) [2016] UKSC 34, [2016] 2 FLR 379, [2016] AC 1117): they had no jurisdiction to hear an appeal under Brussels IIA. The common law remains as set out Ryder LJ’s judgement (and see discussion of this in ‘Children’s Views and Evidence’, David Burrows, Bloomsbury Professional at Ch 4).

 

There is a respectable argument for saying that the Re D approach applies in all children cases where their views should or can be heard by the court ([41]-[44]). Said Ryder LJ:

 

[44] … 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…relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

Children’s rights: new statute law, or a Henry VIII power

 

And that assertion from Ryder LJ is premised on Art 24. So what happens when Art 24 goes? Ryder LJ’s approach remains the common law, even without underpinning from Art 24. Without the clear line set out by the Court of Appeal English children in family proceedings are left only with the permissive approach suggested by s 1(3)(a) and quasi-legislation (albeit endorsed by Family Division judges) set out in Family Justice Council: Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 (prepared after Re D (Abduction: Rights of Custody) (above)). This sets out ‘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. As can be seen Art 24 is much stronger – that is, pro-child – than that.

 

As the source of a right, and as previously set out in Art 24 and as confirmed in Re D, Family Justice Council ‘guidelines’ (even as backed by s 1(3)(a)) are a pallid imitation. As a document offered by English law to guarantee my rights if I were a child affected, I would feel insecure; especially if I was watching the EU Charter boat (with Art 24 aboard) sailing back across the Channel. And I would not be confident that – even as far as it goes – the ‘guidelines’ provide the ‘procedural law’ required by UN Convention Art 12.2.

 

If the common law is not thought to be as expressed by Ryder LJ, I would urge the Ministry of Justice to put the matter beyond doubt, before exit day for the sake of children. Most of the drafting has been done: it’s there in Art 24.

 

And it needs primary legislation. Rules or a practice direction are not enough. Or could it be set out as an early an early example of a Henry VIII power with the new Minister of Justice performing the role of the Tudor monarch….

Help for vulnerable witnesses and children in court proceedings

The BBC reported on Wednesday  that there is a shortage of intermediaries for help of vulnerable witnesses ‘to give evidence to police and court’; and that some intermediaries are refusing to help because of late payment by the police.

 

In criminal proceedings – not yet in family or other civil proceedings – the court can order ‘special measures’ for a child or vulnerable witness (eg someone suffering from mental incapacity, or scared of facing their alleged abuser). This can include having their evidence pre-recorded or having someone with them in court to help with deafness or other communication difficulties (‘an intermediary’). These have been in place – or intended to be in place – for criminal proceedings since 1999.

 

Even this assistance for children, parties and witnesses has not been available in family proceedings – domestic violence, child abuse, or communication difficulties (eg deafness), unless a witness brings their own help. Any payment for help will come from the child or vulnerable person (unless they have legal aid).

 

Since November 2017, a scheme for ‘intermediaries’ has been introduced by court rule. It applies to adults only. The new rule says in terms it will not be paid for by Ministry of Justice; though help is paid for in criminal proceedings. That is the case even if they are suffering from incapacity or have been abused by a former partner.

 

And what about children in family proceedings? Nobody knows (though ‘children’s views’ are part of the EU Charter proposed to be scrapped under Brexit). Recommendations were made in early 2015 by a committee chaired by two judges. This was for a scheme similar to criminal proceedings. Three years later and the Ministry of Justice is still silent on reforms for children…

 

EU Charter of rights and children

A child’s Charter rights which will be lost

 

The Observer today reported that clause 5(4) in the European Union (Withdrawal) Bill which proposes to abolish Charter of Fundamental Rights of the European Union (‘the Charter’) will create a substantial ‘human rights deficit’. It will leave ‘many different groups in society without adequate protection’. Clause 5(4) is in brutally clear terms: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. This article concentrates on children’s rights under the Charter which will go on exit day.

 

An important means of protecting rights – apart from those rights already enshrined in a variety of other legislation and in the common law – is European Convention 1950. This is incorporated, most of it, into English law by Human Rights Act 1998. However there are two substantial qualifications to the importance of European Convention 1950, which the Charter helps to resolve. First, Human Rights Act 1998 does not override an Act of Parliament; though it can enable judges to declare them incompatible with the European Convention 1950. Secondly, the Charter’s protection means that if there is a conflict between basic rights contained in the Charter as against an Act of the Westminster parliament, the Charter – as EU law – will prevail over the Act.

 

Thus if there is – as there may be – a conflict between Children Act 1989 s 1(3) and Art 24 of the Charter for children rights, then the Charter will prevail; unless clause 5(4) becomes law when, after exit day – when UK leaves the EU – the Charter exits too.

 

Children law an EU withdrawal: out with the Brexit bathwater…

 

An area of law which will be appreciably affected in a number of ways by EU withdrawal is children law, in particular where they and one of their parents are living in UK, and the other is in a EU member state. That is a subject which is beyond the scope of this article. I want to concentrate here only on the Charter; and referring only to law which does not remain part of English law. Art 24 of the Charter is concerned specifically with children’s rights (as is, though in slightly different terms, United Nations Convention on the Rights of the Child 1989 Art 12).

 

Under European Convention 1950 children do not have specific rights. Like anyone else a child has rights under the Convention, such as to respect for the child’s private life (Art 8); but a child does not have the specific rights protected by Art 24.

 

Charter of Fundamental Rights of the European Union Art 24 says:

 

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.

 

EU Charter Art 24: children to express views freely

 

I have broken this Article down into its component rights and have set out the Charter rights – ie part of English law as it now stands; and nothing to do with European Convention 1950 human rights. Alongside the Art 24 rights I have shown the parallel English law right – ie all that will remain if the EU Charter is abolished by the Brexit law (as under cl 5(4)). Where there is a blank there is no equivalent provision in English law; though plainly the right at 1 is the subject of a substantial part of a variety of legislation, including local authority involvement with children under Children Act 1989 Parts 3 to 5. It is the right to express views (at 2) which is unique to the Charter:

 

  Charter of Fundamental Rights of the European Union Art 24: children’s rights English law Source of English law
1 Children have a right to such protection and care as is necessary for their well-being    
2 Children may express their views freely    
3 Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. When a court is making an order about a child, it 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) Children Act 1989 s 1(3)(a) and (4)
4 In all children cases… the child’s best interests must be a primary consideration. When a court determines any question with respect to – (a) the upbringing of a child; or the child’s welfare shall be the court’s paramount consideration. Children Act 1989 s 1(1)
5 Every child shall have the right to maintain a personal relationship and direct contact with both his or her parents, unless that is contrary to the child’s interests A court is entitled 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. Children Act 1989 s 1(2A)[1]

 

Child’s views, according to age and maturity

 

The passages in Art 24 with which I am concerned here are at 2 and 3; since 2 is not re-produced in English law in terms which are, in effect, mandatory as is the case in Art 24. If a child wants to express a view, the child ‘may’ do so; and means must be found to ensure this. Even now that is not done properly in English children proceedings. The provision at 2 in the table does not exist in English law, save – whilst the Charter remains part of English law – in Art 24.

 

The importance of Art 24 has been asserted by the Court of Appeal in a judgment approved by the Supreme Court in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 where Lord Justice Ryder explained why a seven-year old Bulgarian child should have had ‘an opportunity to be heard’. This does not mean the child necessarily has to appear in court; but the ‘opportunity’ must be there which it had not been in the Bulgarian courts.

 

The terminology ‘opportunity to be heard’ derives from EU legislation – Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility – to give it its full title; generally known as ‘Brussels IIA’, or Brussels IIR. That legislation will also go with EU withdrawal, a fact which was noted (at para [71]) by the Supreme Court in the Gina Miller case (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583).

 

The alignment of Brussels IIA and the Charter will be considered in another article. For now it is sufficient to say that Brussels IIA as part of its preliminary provisions includes:

 

(33) [Brussels IIA] recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union,

 

Views: an opportunity to be heard

 

So, said Ryder LJ, in Re D (above) that the child’s right to an opportunity to be heard is a ‘child-centred issue’. It ensures that the child is engaged in the process and is accorded due respect in that process. It is thus part of the rule of law in England and Wales that a child has the right to participate in the process about the child (emphasis added) he said, and then continued:

 

[44]  … 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 (my italics).

 

To me this issue turns on the two forms of legislation at 3 above. Childrens’ views shall be taken into consideration on matters which concern them in accordance with their age and maturity, is the EU Charter version. English law says that when making  a decision about a child’s future the 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)’.

 

To me – and I am trying very hard not to load my pro-European views onto this – the English version of the law, from a child’s point of view, is appreciably weaker under Children Act 1989 s 1(3)(a). A child’s ‘wishes and feelings’ are but one of six factors to be considered by the court. None of the six are to be given priority. In EU law the child has a right – unconditionally – to have his or her views taken into account (if that is what the child wants).

 

Under the EU withdrawal bill those child’s rights will go. Children Act 1989 s 1(3)(a) will be all that is left to protect such rights as children are accorded by family courts.

[1] Added by amendment by Children and Families Act 2014 from April 2014

Privacy, the common law and a celebrity divorce

Court divorce papers: how private?

 

Under the headline ‘Jamie and Louise Redknapp’s divorce papers to be kept secret as a judge blocks the release of documents’ the Transparency Project reported last week-end that a London court had ‘blocked the release of papers that would normally be made public and he has not given a reason why’. The Daily Mail, TP said, had complained: ‘A judge has thrown a blanket of secrecy over the’ couple’s divorce. TP replied resolutely:

 

‘What rubbish. A judge has probably refused to allow the press access to something that they weren’t entitled to in the first place and that they knew and the judge knew and we all know probably contains nothing of… public interest. What do the Family Court rules (FPR) allow the press to see? The short answer can be found in rule 29.12 which basically says – if you aren’t involved in the case you can have nada, unless the judge agrees.’

 

I do not believe the answer is as simple as that. The question of release of these documents involves a legal whirlpool fed by at least three conflicting cross-currents:

 

  • The open justice principle
  • That court rules cannot change existing law or create new law
  • The meaning of ‘privacy’ in 2018

 

Privacy, in the case of a ‘celebrity’ – as Mr and Mrs Redknapp are described – creates its own subsidiary question: to what extent is ‘privacy’ consistent with the symbiotic relationship between press and people like the Redknapps?

 

Open justice principle

 

The common law applies to all aspects of English law, save where it is changed by statute. In R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 the Court of Appeal considered whether a newspaper could have released to it papers considered by a magistrate’s court district judge in relation to extradition proceedings. The judge said she could not release papers; and the Divisional Court agreed with her.

 

Toulson LJ gave the main judgment in the Court of Appeal which he started as follows:

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes—who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’

 

Toulson LJ continued

 

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

And in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (a case about anonymity and terrorism) Lord Roger commented:

 

[63] What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.

 

Press freedom and privacy call for a balance to be struck.

 

Human rights

 

To affirm all this, not only does the common law open justice principle ‘let in the light and allows the public to scrutinise the workings of the law, for better or for worse’ (see Toulson LJ above); but it is demanded by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 6.1. This requires all court hearings to be in public; but with certain limits. These limits are summarised in the latter part of Art 6.1 as:

 

1 … The press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

In English common law the position is best summarised by CPR 1998 r 39.2(3); and for this article it is suggested that these limitations operate for all court proceedings (criminal, civil or family). If a case comes within this list application can be made to claim privacy for any hearing, even though it might otherwise have been heard in public:

 

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party; … or

(g)the court considers this to be necessary, in the interests of justice.

 

Privacy is bolstered by European Convention 1950 Art 8, that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

 

However, the right – countervailing that of privacy – is for all of us, that of ‘freedom of expression’ (Art 10). This protects private individuals, press and social media alike. Thus, ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…’.

 

None of these takes priority one over the other (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591); but it is clear that the courts will generally strongly influenced by the Convention emphasis on freedom of expression (Human Rights Act 1998 s 12(4)).

 

Rules cannot change the law

 

The second cross-current is that a court rule cannot change the law. Family proceedings are governed by Family Procedure Rules 2010 which are written by a group of civil servants and practising lawyers (given powers to do so by Courts Act 2003 ss 75-76). They are not considered by MPs but are dealt with by the negative resolution procedure (Courts Act 2003 s 79).

 

The aim of the rules is to define how courts should apply the law (procedure). Whether or not documents (eg a divorce petition) should be released to a non-party is an example. If a rule says something different from the common law, the rule is wrong; and there is certainly nothing in those rules ‘expressly permitting’ that the rule makers can alter common law principles.

 

That this is not possible, constitutionally, is confirmed by for example Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale in the Supreme Court said:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

Generally proceedings under FPR 2010 are heard in private (FPR 2010 r 27.10); unless the rules say something else. Proceedings under FPR 2010 Pt 7 (mostly for divorce) are to be heard in open court (r 7.16(1)), save in the circumstances listed in r 7.16(3) (which provides a list similar to CPR 1998 r 39.2(3)) which sets out when court hearings, otherwise open, may be in private.

 

This is openness subject to the condition that only certain information may be publicised by the printed press (publisher or printer) Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b). But what is meant here by a ‘hearing’ and, subject to that, what documents can be released to those who attend court?

 

A side comment on this is provided by r 29.12(2). If there has been a hearing in open court anyone can ask for a copy of the order made. In the case of divorce proceedings this is unremarkable. A divorce order is in rem: it speaks to the world. This tells us nothing about whether, for example, a journalist can obtain a couple’s divorce petition and if so, to what extent his or her newspaper can publish anything.

 

If the journalist can obtain documents – as could the Guardian in the Westminster Magistrates’ case – is it consistent with the right to respect for a couple’s private life that they should be allowed to publish (European Convention 1950 Art 8.1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457)? If no, does it make any difference that one or both of the couple concerned are ‘celebrities’ (ie spend much of their life developing a symbiotic relations ship with the press, as in Naomi Campbell’s case)? Probably not; but this is part of a much wider subject, and must be the subject of a separate later article. In the meantime, what can be released to non-parties: that is to anyone who is not a party to the proceedings?

 

Divorce papers and release of hearing documents

 

What court documents – such as divorce papers which set out why one party says he or she should not have to live with the other – should be permitted for release? The law is unclear on this (as explained in my ‘Release of family courts hearing documents’).

 

Here an odd statutory side-wind blows in. Even if a journalist sits in court for a divorce (and very few divorces are ever heard in open court, since only defended divorces involve a full hearing) he or she still cannot publish any but the most basic information about the proceedings. A little known statute – Judicial Proceedings (Regulation of Reports) Act 1926 (considered more fully here) – at s 1(1)(b) says that a newspaper or printer who publishes anything about a divorce except basic information (such as names, addresses etc of the parties and details of legal argument and judgement), may be prosecuted (if the Attorney-General agrees). This was at a time when radio (‘wireless’ as it was then) journalism was little known; and television and social media not dreamed of. Only print media are caught by s 1(1)(b). It does not catch the rest of us nor other media.

 

What we know so far is that court orders can be released and that court hearings are in open court. The law is that a non-party – such as the Mail – must apply for documents. This was established by the Guardian v Westminster case; and backed up by NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J. If application is made, the Mail must explain why it wants the documents. As Toulson LJ (with whom Lord Neuberger LJ and Hooper LJ agreed):

 

[85] In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

 

It may be worth adding that as Hooper LJ pointed out (at [95]), the position on disclosure in criminal proceedings (then Criminal Procedure Rules 2011 r 5.8(7) now 2015 r 5.7(5)) is:

 

If the court so directs, the court officer will— (a) supply to the applicant, by word of mouth, other information about the case; or (b) allow the applicant to inspect or copy a document, or part of a document, containing information about the case.

 

This is supplemented, as Hooper LJ points out, by a note that the supply of information may be affected by European Convention 1950 Arts 6, 8 and 10 ‘and the court’s duty to have regard to the importance of— (i) dealing with criminal cases in public, and (ii) allowing a public hearing to be reported to the public’. It will be recalled that, as ever, it is the same common law which regulate criminal and family proceedings.

 

If the Mail gets them, they cannot print more than names, addresses and the judgment. So far as rules say anything else – eg that non-parties cannot even apply for documents or information (which some judges think is what the law says) – the rules are unlawful. Guardian v Westminster makes it clear that the court must consider any application and deal with it on its merits and according to the individual facts of the case. In the case of the Redknapps the district judge had to make deal with the application and give reasons for his decision (FPR 2010 r 27.2(3)).

 

Privacy and the ‘celebrity’ divorce

 

The basis for that district judge decision brings in the final cross-current: privacy. This is a relatively new principle of English law, derived partly from our common law rules about confidentiality and partly from European Convention 1950 law. It was most famously considered in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 when Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; and the House held (3:2) that her privacy had been breached. Secretly the Mirror had arranged for photos to be taken of her. These were published them with further stories about her drug habit (which up till then she had publicly denied). She was awarded £3,500 damages.

 

The House asked: what privacy was she entitled to expect, even as a very public person (‘celebrity’) and although the Mirror were putting the record straight on her drug habit. Despite these two points, there was an extent to which she could expect privacy said the two lords and a lady. If I were asked I would say the Redknapps were entitled to privacy with their divorce papers; and that the district judge could say so.