Legal aid and Convention rights in domestic violence committal proceedings

20170407_185106

Non-molestation orders and conviction for breach

 

Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson [1978] UKHL 1, [1979] AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article

 

FLA 1996 s 42, as relevant, reads

 

42 Non-molestation orders

(1)   In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions –

(a)provision prohibiting a person (‘the respondent’ [(B)]) from molesting another person [(A)] who is associated with the respondent;

(b)provision prohibiting [B] from molesting a relevant child [(C)].

(2) The court may make a non-molestation order –

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by [A] with [B]; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or [C] even though no such application has been made.

 

Offence for breach of non-molestation order

 

Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:

 

42A Offence of breaching non-molestation order

(1)   A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….

(5) A person guilty of an offence under this section is liable –

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….

 

Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).

 

Conviction on a substratum of findings to a civil standard of proof

 

Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid.  B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.

 

If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest [2015] EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal) [2016] 1 FLR 773.

 

McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura [2013] EWHC 3633 (Fam), [2013] 2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan [2013] EWCA Civ 586, [2014] 1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:

 

[55]   The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.

 

The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:

 

[55] … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

(c)the burden of proof is at all times on the applicant; and

(d)the respondent cannot be compelled to give evidence.

 

 

The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak [2001] 1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:

 

[29] … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.

 

The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:

 

3 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;…

(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

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

 

Engels v Netherlands: ‘legal assistance of his choosing’

 

Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:

 

[85] The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a “determination” of “civil rights”

[87] Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).

 

As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.

 

Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3

 

The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?

 

This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:

 

[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.

 

And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?

 

If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.

 

Legal aid and the non-molestation order

 

The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.

 

But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.

 

 I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.

Advertisements

Child contact, non-molestation and McKenzie Friends

Non-molestation and child arrangements orders

 

20170407_154512.jpg

Re J (Children) [2018] EWCA Civ 115 (6 February 2018) raises at least the following issues:

 

  1. Hearing of cases of domestic violence and the period any non-molestation order;
  2. Case management and how long it takes a children case to come to trial;
  3. Litigants in person and their McKenzie friends (MFs);
  4. The fair trial of a parent’s case where he cannot obtain legal aid.

 

After nearly 20 years of marriage a couple separated in September 2014 when the father left their home. They had three children then aged around 16, 13 and 8. W obtained a not on notice non-molestation order in December 2014 (why she applied three months after the separation, the report does not say). This included that H should not communicate with W or the children; and it continued till 22 December 2016, though an earlier return date in January 2015 was fixed. H wanted contact with his children. He cross-applied for a child arrangements order and for his own non-molestation order. He alleged balancing abusive behaviour by W. A ‘finding of fact’ hearing was fixed before a judge on 2 July 2015.

 

At that hearing H had a McKenzie Friend (MF). But how much part could MF play in the proceedings? He was refused permission to address the court or to cross-examine W. It was agreed that as H was offered contact there would be no fact-finding exercise; though the injunction, with no contact by H and no findings still stood. The children remained resistant to contact. Eventually a final hearing was fixed for 12/13 July 2016 (sic).

 

The father’s appeal

 

It was the decision at that hearing against which H appealled to the Court of Appeal on the following grounds:

 

  • The non-molestation order was allowed to run without determination of facts.
  • The MF had been wrongly denied a right of audience.
  • No findings of fact had been made.
  • The full powers of the court had not been used eg where their guardian admitted they were suffering emotional harm.

 

The outcome was a Pyrrhic victory for the father. His appeals on (1) and (3) were allowed; but no order was made by the court. The objections expressed to NYAS by the children to contact made any fresh hearing on the contact application, said the court, ‘simply too late and contrary to the welfare interests of the [younger two] children’ (para [99]).

 

It will be striking in this post, that many of the legal principles applied are derived from a practice direction (eg FPR 2010 PD12J) and from ‘practice guidance’. Neither of these have the force of law in the way that, for example, a statute or the common law (judge-made law) have. It might have been possible for the father at first instance to have challenged the judge on the content of the McKenzie Friend practice guidance (considered below); but that is a discussion for another day.

 

‘Findings of fact’ hearings

 

Routinely family judges set down hearings for ‘findings of fact’. I have never understood quite what this means. It is the principal function of a judge in any case whatever the background that the court finds facts, applies any law to those facts and then, exercising any discretion vested in him or her, disposes of the case – ie makes an order. Having a ‘finding of fact’ hearing implies there is in some way a phased process, in which establishing facts is the first step. This is only rarely the case.

 

I can see that case management here might have demanded that the abuse issues between H and W needed to be resolved at one hearing. This would result in an order. A second hearing, probably before the special measure judge, might then involve further factual and welfare issues to be resolved for the boys. Any child arrangements order could then be made and the extent (if any) of the father’s contact resolved. Domestic abuse and contact might be separate issues; but each will call upon a court – as with all cases tried every day – to find facts on which a determination may be based.

 

Non-molestation order and its duration

 

The non-molestation order made for two years was not ever revisited. This was in breach of the then practice direction (re-enforced by Practice guidance 18 January 2017: Family Court – Duration of without notice orders): that without notice orders should have a return date of not more than 14 days from the first order (para 5(ii)).

 

I am not at all sure this is what the law (as distinct from a ‘practice guidance’) says. Family Law Act 1996 s 42, which enables a court to make a non-molestation order, says that an order can be ‘for a specified period or until further order’ (s 42(7)). For H in this case there is no doubt that the period should have been much shorter and the facts on which the original order was made should have been tested much sooner (as the Court of Appeal accepted).

 

Domestic violence: delay and case management

 

The courts had had what McFarlane LJ called a ‘wake-up call’ as to ‘the potential harm to children that may arise from domestic abuse within a family, whether or not the children are directly involved in any particular episode of such abuse (para [39]) Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334. Practice directions have followed.

 

The most recent practice direction, was an amended PD12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm (October 2017) by which ‘courts are required, at an early stage in proceedings, to identify whether there are issues of domestic abuse and, if so, apply the requirements of PD12J to their management of the case’ (para [40]). PD12J para 19 requires court to ensure that cases which may involve domestic abuse are resolved and emphasises the need for ‘the proceedings to be “conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties” (emphasis added by the judge)’ (para [45]).

 

McKenzie friends

 

The role of McKenzie friends are regulated by practice guidance Practice guidance: McKenzie friends (civil and family courts): 12 July 2010 [2010] 2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P). There is no clear law on what their role and rights of audience are. No rules or even a practice direction, still less primary legislation, explains their positon.

 

By contrast common law backed by European Convention 1950 Art 6(1) (right to a fair trial) – and, perhaps, Art 6(3) (to be explained another day) – requires that anyone coming to court should have a fair trial. This is backed by Convention jurisprudence which declares that Art 6(1) entitles parties to ‘equality of arms’; and this is echoed in the family proceedings overriding objective that requires that parties be ‘on an equal footing’ (FPR 2010 r 1.1(2)(c)).

 

The practice guidance provides a definition of what a McKenzie Friend is and what they may do. The case of Re J, said McFarlane LJ ([68]), did not provide an opportunity to set out guidance beyond what is in the 12 July 2010 practice guidance. So far as cross-examination by a McKenzie Friend is concerned, the court by implication was not prepared to consider this. The ‘stark’ choice remains (as set out in K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754): either the alleged abuser cross-examines; or the judge puts the questions for him or her (MFPA 1984 s 31G(6)).

 

On the McKenzie Friend ground the father’s appeal was not allowed; though his McKenzie Friend was permitted to address the Court of Appeal. However, acting as ‘counsel in a trial’ said the Court of Appeal was an ‘altogether different issue’ ([62]).

 

Fairness of an alleged abuser’s trial

 

This still leaves the question of the fairness of the way in which cases such as H’s are tried, where someone in his position does not have access to legal aid nor the means to pay for representation. This is for another day, with the current legal aid provisions and with the law – such as it is – on McKenzie Friends and Arts 6(1) and 6(3) fully in mind.

Listening to children and ‘disclosure’

Interviewing children: Cleveland and ABE guidance

20160419_170156

In AS v TH (False Allegations of Abuse) [2016] EWHC 532 Fam, MacDonald J said of the term ‘disclosure’ cases where child abuse is suspected that the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmd 412: Cleveland Report) contains a variety of important guidance with respect to cases involving allegations of sexual abuse and children proceedings. Before setting out his thoughts on this the judge – a highly experienced children lawyer – noted, in passing:

 

[33] … despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them).

 

And now a prompt for this note is that last Friday (2 February 2018) Resolution (which represents a group of family lawyers, and assert expertise in children law) and NSPCC both put out publicity asking for replies for a survey on ‘receiving disclosures’:

 

We would like invite you to complete our survey on professionals’ experiences of listening to children and receiving disclosures of abuse and neglect. Our ambition is to develop a practical resource that will support professionals working with children to confidently deal with disclosures of abuse and to improve children’s experiences of the disclosure process.

 

Resolution backed this up with a tweet:

 

The @NSPCC is looking for input from professionals working with children and family courts to inform a new resource to help professionals deal with disclosures. The survey should take 15 minutes and all submissions are anonymous via https://buff.ly/2EsWt7d 

 

Neither organisation has responded to my concern at the mismatch between what they are sending out, and what was said – over 30 years ago – in the Cleveland Report. Both should be well aware of the report.

 

Yesterday (5 February 2018) Sarah Phillimore posted: http://childprotectionresource.online/mind-your-language-whats-the-problem-with-disclosure/ on what’s in a word, like ‘disclosure’.

 

Mr Justice MacDonald and the Cleveland Report

 

MacDonald J continued in relation the Cleveland Report and to how professionals can respond to worries about a child being abused:

 

[35] Where a child makes an allegation of abuse to a professional, the relevant guidance for professionals to whom allegations of abuse are reported makes clear the following principles with respect to the initial contact with the child.

[36] In the departmental advice What to do if you’re worried a child is being abused (HM Government, March 2015) (replacing previous guidance published in 2006) states that before referring to children’s services or the Police an attempt should be made to establish the basic facts. Within this context, the following is said at [28]:

“The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information”

And at [29]:

“If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”

 

And then to ABE Guidance and video recording of alleged victims:

 

[37] The statutory guidance Achieving Best Evidence in Criminal Proceedings (March 2011) makes clear at [2.4] that the need to consider a video recorded interview in respect of the allegations may not be immediately apparent to professionals involved prior to the police being informed. [Para 2.5 continues]:

“Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present.”

[38] The ABE Guidance goes on to state at [2.6] under the heading ‘Initial Contact with Victims and Witnesses’ that a person engaged in early discussion with an alleged victim or witness should, as far as possible, (a) listen, (b) not stop a free recall of events and (c) where it is necessary to ask questions, ask open-ended or specific closed questions rather than forced-choice, leading or multiple questions and ask no more questions than are necessary to take immediate action.

 

ABE Guidance

 

The subject of interviewing children takes the practitioner back to Chapter 12 of the Cleveland report, which is entitled ‘Listening to the Child’ and summarises the evidence of a number of the child psychiatrists who gave evidence to the inquiry. The purpose of the interview must be ‘to hear what the child has to say’ (§12.12) where the child is of sufficient ‘age and understanding’ (§12.10). The interviewer must use open questions (§§12.24; 12.34.4) and understand that there may be a variety of reasons why the child is speaking or is not willing to: the abuse has occurred; the child does not want to speak or is in denial; or the abuse has not occurred (§12.25). Interviewers must have an open mind (§12.34.3: which makes the term ‘disclosure’ such bad practice). Those conducting interviews must be trained (§12.34.2&11).

 

These recommendations are developed on the back of interviewing for court in criminal proceedings following Youth Justice and Criminal Evidence Act 1999 Pt 2 in ABE Guidance. The Guidance is clear: no assumptions as to anything that has happened – which had bedevilled the initial investigations by doctors in Cleveland – must be made by anyone interviewing a child. An open mind and open questions are essential.

EU withdrawal and family law

Notes on speech of Lady Sherlock in House of Lords

20160419_173301

Extract from conclusion to speech of Lady Sherlock in House of Lords debate on EU withdrawal on 31 January 2017. The numbering is mine. Comments appear below each paragraph:

 

Procedure and European Court of Justice

1 What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.

 

The procedural point cannot be stressed too strongly. Each EU country keeps its own cultural roots in family law. No one tells the UK it must change its primitive adoption laws; nor dictates to any EU catholic country which may have different bases for dissolution of marriage. UK money distribution remains its own.

 

That said the primacy of children’s welfare in any decisions is one adopted by EU law and re-enforced by the European Court Neulinger and Shuruk v Switzerland Application No 41615/07 [2011] 1 FLR 122, ECtHR).

 

A bespoke arrangement

2 Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.

 

‘Slow and difficult’ is not an answer. We are here today with ‘exit day’ a matter of months away; so for the sake of the families and children concerned it must be dealt with by 2019. The opposing Brexit army abetted by MPs on both sides of the Commons, is advancing. Family lawyers cannot just say: ‘wait, we aren’t ready to fight’. We just have to work harder to prepare battle positions: ie a fresh Brussels IIA.

 

The ‘bespoke’ solution sounds a little like the second option put forward by family lawyers in reply to Brexit (October 2017). If nothing is ‘bespoken’, separating families and their children will fall off the famous Brexit cliff edge; and this is not for lack of warning. The problems families will suffer as outlined in the earlier part of the speech were predicted by the Supreme Court over a year ago in R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 at para [71].

 

The painful fact of the matter is that unless EU and the Tories agree to keep such instruments as 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 (‘Brussels IIA’) on hold families like the one in the earlier part of Lady Sherlock’s will fall into a Brexit void where few hold will be barred between competing jurisdictions.

 

The Ministry of Justice and practising lawyers must get their heads together with individual jurisdictions to work out what reciprocity can be agreed following EU withdrawal and to agree how this is to be enforced. For the sake of the families and their children concerned, surely those who support EU withdrawal can agree that the European Court of Justice continue to have jurisdiction in those few cases where a neutral arbiter is needed?

3 I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

4 I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.

 

Children

 

The issues over children go must wider than anti-trafficking (crucial though this is). EU law is much more firm and clear – though still not always followed by UK law (as I explain ). UK is bound by eg Charter of Fundamental Rights of the European Union (2000/C 364/01), which the Government proposes to ditch. This gives children rights to express their views which still need clearer procedural expression in English and Welsh law. Outside EU there is a real risk that children’s rights will again suffer. The massive advances of Children Act 1989 twenty-five years later and without the impetus of EU law reform look tawdry in the area of children rights.

 

Without Brussels IIA children in care will find themselves caught in a jurisdictional cross-fire where parents leave UK, and children are in care in England and Wales (Brussels IIA Art 15: there are a number of recent reported decisions on this see eg Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge).

 

Agenda for EU withdrawal

 

If EU withdrawal is to go ahead

 

  • Lawyers and the Ministry of Justice must urgently engage with EU judges (through a representative body, or in each state)
  • Children law and children’s rights to be heard must be made more clear preferably by statute.

 

Without this families and children will suffer.