Appeals in family proceedings: the rules diverge

20170407_185106Work out which court: spot the differences in procedure…


Rule-makers often make things needlessly difficult for parties to family proceedings. An example, for which there should have been no need if the rule-makers took a little care (and co-operated with one another) is for those involved appeals from family courts decisions. First, would be appellants in family cases, have the worry of working out which court they must appeal to – High Court family judge or Court of Appeal. Secondly, they must be clear which set of rules – Civil Procedure Rules 1998 (CPR 1998) Part 52 or Family Procedure Rules 2010 (FPR 2010) Part 30 – applies to their appeal. (The first dictates the second.) For parties who are doing their own legal work – that is, litigants in person, who account for up to 40% of appeal cases, it is said – just to start an appeal under this separation of courts and their procedures must be a challenge.


Beyond this there is an increasing divergence of appeals procedures for appeals in the family courts governed by the two sets of procedural rules. It should not have been beyond the wit of the rule-makers to ensure that all family proceedings appeals were governed by the same set of rules, in the Family Court, the Family Division of the High Court and in the Court of Appeal? But no. Appeals from magistrates and lesser judges in family proceedings go to higher judges, but still in the family courts. Appeals from higher family judges go to the Court of Appeal. A person appealing against any magistrate’s or judge’s decision must know to which level of court to appeal since – and this is the main purpose of this article – the first type of appeal proceeds under one set of rules (FPR 2010), and the second under other rules (CPR 1998). Each was drafted in much the same terms originally; but increasingly the framework of the rules for of such appeals is altering away from each other.


Appeals in family proceedings: Court of Appeal and family courts


First, a little history. In 1998 Lord Woolf’s rules committee published a new set of rules for civil proceedings – CPR 1998. These rules were intended to be clearer than the earlier 1965 rules, as this was mostly the case. Until 1998 all family proceedings had been dealt with as civil proceedings under the previous civil proceedings rules (Rules of the Supreme Court 1965) as varied by any relevant family proceedings rules (then Family Proceedings Rules 1991). That remained the case for family proceedings after 1998.


Meanwhile in 2000, a new CPR 1998 Part 52 introduced rules for appeal to the Court of Appeal. As an exception to the general rule – that CPR 1998 could not apply to family proceedings generally (CPR 1998 r 2.1(2) – Pt 52 applied to all appeals to the Court of Appeal in family cases. That remains the position with Court of Appeal appeals today.


In April 2011 a new set of family proceedings rules (ie FPR 2010) was introduced for all family proceedings (and to replace FPR 1991). Family cases had their own set of rules. But these rules were a mixed adaptation of old rules (such as those for financial relief proceedings which had come in with their own style of drafting and tenuous regard for the law in 1996); and of restyling of CPR 1998 (eg for interim applications (CPR 1998 Pt 30 parallel with FPR 2010 Pt 20), evidence (CPR 1998 Pts 31-35 parallel with Pts 21-25) and appeals (Part 30 as explained later)). In certain areas there were brand new rules (eg divorce (FPR 2010 Pt 7 and children proceedings (FPR 2010 Pts 12 and 16)).


FPR 2010 had its own appeal rules within family proceedings, namely Part 30: that is for appeals from a lesser judge to a higher, but within the family courts. Part 30 was originally modelled almost word for word on CPR 1998 Pt 52; but then it began increasingly to move away from Pt 52, though within the family courts. No longer can an appellant, or their adviser, assume that its parallel is the same as the other. Since 22 April 2014 appeals from many circuit judge and district judge decisions is to a High Court judge.


Three examples of the divergences between Pt 52 and Pt 30 follow.


Appeals practice directions


First, appeals practice directions. Most rules do not stand alone. They are backed by practice directions which are a form of semi-delegated legislation which exist in an ill-defined regulatory no man’s land between rules and guidance. Rules depend on practice directions for their operation, but – especially in family proceedings only – Lady Justice Hale (as she then was) has said they are ‘probably not made under any statute at all’ (Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602); though outside family proceedings they must now have the authority of the ‘Lord Chancellor’. In October 2012 the practice direction for civil appeals was amended in its entirely and was replaced with five sets of new practice directions (the first four of which can apply in family proceedings): Practice Direction 52A-52E.


The practice direction to FPR 2010 Pt 30 remained – and still remains – the same in outline; though it has been redrafted since the provisions in Pt 30 were introduced in April 2014 which enabled lower judge decisions to be appealled against to a higher single judge (see eg Practice Direction 30A – Appeals para 1.2).


Secondly, with effect from October 2016 the rules in CPR 1998 Pt 52 were completely overhauled. Most of it remained much the same; but significant provisions changed. These were not necessarily changed in the hitherto more or less parallel FPR 2010 Pt 30. For example, the new r 52.3 has deleted the right of an appellant who has been refused permission on paper by a single judge in the Court of Appeal to go back to the court itself and to ask it to reconsider a grant of permission to appeal (see discussion in Goring-on-Thames Parish Council, R v South Oxfordshire District Council [2018] EWCA Civ 860, [2018] 1 WLR 5161). Now, if you are refused permission to appeal by the judge who made the original decision and by a Court of Appeal judge on paper, that is an end of your appeal. By contrast appeals to the Family Court can be reconsidered by a judge in the appellate court (as was the old rule in the Court of Appeal).


Family appeals: in private or in public?


A third divergence is that separate rules are to be introduced for the hearing of Family Court appeals. From 10 December the family judge can order that an appeal hearing is to be in public. Most family proceedings hearings are in private; whereas almost all Court of Appeal appeals (save eg in children cases) are in open court (recently explained by Lady Justice Gloster in the Court of Appeal in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 ). A new rule – FPR 2010 r 30.12A – is to be added to Pt 30 to enable a judge to say that an appeal should be heard in open court (ie ‘in public’). The present position on open court hearings in family proceedings is not always clear. Different common law principles and court rules (in the case of family proceedings) apply according to whether an appeal is in the Court of Appeal or in the Family Court or Family Division under Pt 30.


For appeals which are in the family courts under FPR 2010 Pt 30, the judge is likely to expect that, in accordance with the general rule in family proceedings, most hearings will be in private (r 27.10). However, the new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(2)(c)).


No more is said by the new rule as to how the new open court powers are to operate. For example what factors should the judge take into consideration when deciding whether to open the court to the public? There are a number of bases set out in case law (ie common law) which suggest how a judge might decide on making the court open to the public (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417); and there are three statutory lists which develop and categorise the common law privacy exceptions (Administration of Justice Act 1960 s 12(1); CPR 1998 r 39.3(2) which is reproduced in the third list for divorces at FPR 2010 r 7.16).


As matters stand Family Division judges cannot decide between themselves as to when case should be in private or in public, and when parties (other than children) should be anonymised in family proceedings. We will have to see how this rule – which must surely operate to mirror common law provisions generally? – beds down; and how it is operated by the High Court judges who sit on these family proceedings appeals.

Domestic abuse in the family courts: how can proceedings be made more civilised? (2)

20160419_173301Domestic abuse: making proceedings less frightening


Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in private (ie in secret). The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court (as explained in an earlier post here).


Yes, but if domestic abuse proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly in court – the abuse she complains of? This post explains that some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other such procedures are available in criminal proceedings, but are still not available to the Family Court to help domestic abuse complainants.


This post will assume that the complainant partner or spouse is (as is mostly the case) the mother. The father has been responsible for domestic abuse (violence, controlling behaviour and so on). The question of whether a hearing should be in open court was considered by me here; and what is meant by ‘domestic abuse’ as the law now stands was considered here).


In the first post I explained why I thought that in law domestic abuse proceedings should be in open court; just as a prosecution for a criminal offence arising from the same facts would be publicly dealt with. To help complainants there are a range of family courts procedural features which must also be considered (and which are I hope, being considered by Home Office reformers as I write):


  • 1 In all Family Court hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 2 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.


Other fair ways to provide evidence


The conventional way for any case to be dealt with is for parties to proceedings and any witnesses to put their evidence in writing (a statement) to the court. That is their evidence in support of their case (evidence in chief). In practice judges like to hear a bit more from the parties and their witnesses. In some cases parties – parents, say, in a dispute about where a child should live – may be asked to say more about the background to the case and their feelings about their children and where they should live.


Giving evidence must be bad enough in any proceedings; but where you are being told that it is for you to convince the court that your individual claims are true (where your former partner disputes what you are saying) it must cause even more anxiety. And then for that evidence to be required to be given in front of the person who you say has abused you.


There are ways a person can give that evidence in chief by using evidence they have recorded with the police (called ABE (‘achieving best evidence’) evidence). ABE evidence is mostly obtained during initial police investigations. This is used routinely for a child’s evidence in care proceedings. In criminal proceedings it can also be used for evidence from adults. There is no reason in principle why it should not be used as evidence obtained from adults in family proceedings; but I suspect it rarely, if ever, is. And, by extension, there is no reason why adult ABE evidence cannot be used where solicitors – very carefully, and without leading questions – have recorded their client’s evidence. Is this ever done?


Next, evidence can be given in court by video-link where the complainant is in a different room from her former partner; but many courts do not have the equipment. How many lawyers challenge HMCTS to equip themselves properly so evidence can be given in this way? Evidence can be given from behind a screen so the complainant need not see her former partner.


All of these are there in the law – not just the rules – for parties to use. Might they help a frightened complainant to give evidence?


An advocate to ask questions for an allegedly abusive partner


A next procedural problem may arise. Suppose the former partner is unrepresented. He has no lawyer as many will not have. He will not be eligible for legal aid.


He is entitled to cross-examine the complainant and challenge her as to the truthfulness of what she has said to the court. That is truly to make her relive the abuse: a High Court judge has recently commented of a case ‘It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross examined by an alleged perpetrator.’ That judge had to sit through a hearing – children proceedings, not domestic abuse – and hear the woman being shredded by her former partner. To deny it would be to deny the partner a right to cross-examine which would be to deny a fundamental legal right.


It will not surprise readers of this post to find that criminal cases are well ahead – 20 years ahead – of family proceedings. In criminal court there is a scheme, which was copied for family proceedings in Prison and Courts Bill cl 47. Clause 47 was lost with the 2017 election and is under review in the Home Office – we are told – now.


The criminal scheme makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. Thus, in criminal proceedings, an accused cannot then, by law, cross-examine the complainant. The court must then ‘invite’ the accused to instruct an advocate. If he refuses – he cannot, or will not pay, for example – the court must consider whether it is necessary for the witness ‘to be cross-examined by a legal representative appointed to represent the interests of the accused’. If that happens the court must then consider appointing an advocate to ask questions of the complainant (or accuser/witness in criminal proceedings).


None of this is going to make it any easier for a complainant to appear in court; but, whether or not proceedings are in open court, the procedural points considered in this post might at least make it a little less unpleasant for her than it must be in most cases now.


Why does the Family Court hear domestic abuse cases in private? (1)

20170722_161644Domestic abuse and children

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in secret. The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court. But, it is said, if proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly – the abuse she complains of? Some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other procedures are available in criminal proceedings, but are still not available to the Family Court. This and a second post examine these issues.

In her Guardian article, ‘Why do we separate the mother and child victims of domestic abuse’ (20 November 2018) Louise Tickle drew attention to the dire circumstances of mothers who lost their children because of domestic violence. This might be to the care of a local authority. A judge in care cases (she suggests it is quite frequent) ‘is told that the mother has “failed to prioritise her children’s needs over her own”. Social services know perfectly well that the abuse isn’t the victim’s fault – but, they tell the court, she’s the only protective factor in her kids’ lives. And she’s failing at it.’


This post will assume that the complainant partner or spouse is (as is mostly the case) a mother. The social services department, if involved, assumes that the children will remain with her. The father has been responsible for domestic abuse (violence, controlling behaviour and so on: a subject considered by me eg here and here (in relation to ‘open court hearings’)).


The treatment of a complainant parent in the way described by Louise Tickle way is, as the Guardian says, ‘grotesque’. And it is grotesque on a number of levels. This and a following post look will look at three features of the way domestic abuse cases are dealt with by the family courts, namely:


  • 1 Claims by mothers are being dealt with in private (or secret). This is probably unlawful. Criminal proceedings on the same domestic abuse facts are dealt with in open court; so that the ‘grotesque’ features described by Louise Tickle go unchecked.
  • 2 In all family courts hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 3 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.


The first question, which this post seeks to address, is that of private family courts. (Meanwhile domestic abuse proceedings are the subject of Home Office consultation (previously discussed by me here).) The procedural matters which arise from the second two questions will be dealt with in a separate post.


At present the abused parent – in the procedure discussed by Louise Tickle – applies to the Family Court for a non-molestation order. If the complainant proves she has been ‘molested’ (ie made the subject of domestic abuse) she will have an injunctions (a court order which tells her former partner not to ‘molest’ her); and her former partner may also be excluded from their home (if he is still there). If he breaches the orders – ie is responsible for further abusive behaviour, which is proved – he may be sent to prison (though this is often not until after a number of successive complaints to the Family Court have been made by a wife/mother).


Meanwhile, says Louise Tickle, ‘children are being taken into care in unprecedented numbers, and losing their human right to live with their birth families because women are being blamed, rather than helped. Removing children from mothers suffering domestic abuse prioritises short-term safety over the much bigger win that would help keep a family physically and psychologically intact in the longer term.’


Open court or private hearings


So should cases be heard in open court? And if not, why not?


Domestic abuse proceedings are ‘family proceedings’ (ie they deal with issues which need to be resolved for a broken family). Family proceedings are dealt with in private (ie no one but the parties and court staff etc) can go into court. This privacy is required by the court rules. For good measure the rules say, in the part which deals with domestic abuse, ‘applications for an occupation order or non-molestation order will be in private’. But is this the law?


It is an old rule – what lawyers call ‘trite’ law – that a court rule cannot override the law. A court rule is not law. It can only dictate how the procedure which defines the law is to operate. Thus, the common law says that all court hearings shall be in open court, with certain long-standing exceptions (listed later).


In 1913 in a family law nullity case, where a husband had said he did not want everyone to know he was incapable of sex with his wife, the House of Lords said to him, ‘tough’; only a limited band of cases (and his was not one) could be heard privately (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). In 1913 this limited band was as Lord Shaw said (echoing the words of other law lords), confined to three categories of case which are (adopting the terminology of the time): ‘The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention — trade secrets — is of the essence of the cause.’


To this list the common law in 2018 has added


  • Matters relating to national security
  • Proceedings concerning confidential information, where publicity would damage that confidentiality
  • An interim hearing where publicity would be unjust (eg the recent Philip Green Court of Appeal hearing and Peter Hain)


None of this list of six categories of case – which still represent the law over 100 years later – includes domestic abuse, whether in the Family Court or in any other court. But can the rule makers (who are entirely undemocratic) change the common law. No, they are not. Subsequent Supreme Court authority has confirmed that. Only another decision of the Supreme Court or a statute can change what is in the common law.


Why hearings in open court?


The reason for open court hearings has been explained by judges frequently. Recently in a case where the Guardian sought documents from a magistrates’ court extradition hearing (which the Court of Appeal agreed the Guardian should have) Lord Justice Toulson said of ‘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.’


The judge continued: ‘Jeremy Bentham explained this: “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.”’


And surely this statement from Jeremy Bentham is why, in principle and subject to protection for the complainants (to be discussed in the second post), that domestic abuse hearings should be in open court? They would be dealt with in open court before a jury on the same domestic abuse facts. Provided that the welfare and anonymity of any children involved is protected – as it is in the Crown Court – then the law (ie as distinct from the rules) is, I believe, that these proceedings should be in open court.


If judges and local authorities are behaving as Louise Tickle says they are; or if violent men are being dealt with leniently; and all this is being covered up or glossed over because of the secrecy of Family Court proceedings, then the way in which these cases are dealt with in the family courts should, surely, be seriously questioned. The first thing is to ask: does the law say these cases can be dealt with in private; and if not to open up domestic abuse courts to Benthamite publicity. This is what I believe the common law requires.

Mr Justice Mostyn on the repulsive practice of modern slavery

20170407_185106‘A brutal form of organised crime’: Home Office and ‘subsistence’


In K & Anor, R v Secretary of State for the Home Department [2018] EWHC 2951 (Admin) (8 November 2018), Mostyn J, sitting in the Administrative Court, dealt with a case concerning modern slavery and the extent to which the UK Home Office complied with internationally agreed obligations for the UK ‘to provide support and assistance to victims of trafficking’ ([4]); and to which the Home Office actions breach the European Convention 1950 rights of the victims not to be discriminated against.


In so doing, Mostyn J exposed the ways in which the Home Office deals with victims of modern slavery, including (as more fully explained below):


  • No statutory guidance was issued by the Home Secretary as to financial support for victims of trafficking; though Modern Slavery Act s 49(1) says this ‘must’ be done; though internal staff guidance was provided.
  • The contract between certain victims to reduce their subsistence was changed by the Home Secretary unlawfully and unilaterally; on a ‘false basis’ and without proper reasons being provided.
  • The term ‘subsistence’ was unfairly treated and in a repressive way.


The complexity of the scheme operated by the Home Office must be born in mind in what follows. It cannot be easy to wade through it for an experienced adviser. How much more so much more so for the victims themselves? Does this unfairness in itself amount to unfairness?


Financial support for the victims of the ‘malignant practice’ of modern slavery


On 1 March 2018 the weekly cash amount payable to those entitled to payments was cut by 42% from £65 to £37.75. The claimants in K said the cut was unlawful. Mostyn J showed why this was indeed so and sturdily criticised the Home Office’s meagre financial support for victims. Mostyn J characterised modern slavery as ‘a repulsive, strikingly malignant practice, as damaging in its impact on its victims as was its historical predecessor’ ([2]). Modern Slavery Act 2015 is Parliament’s recognition of this, the explanatory note to which includes:


‘Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. [It] takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life.’


Mostyn J listed from the explanatory note in the Act the international instruments on trafficking to which the UK was committed. These include obligations to provide financial assistance for victims. The first step to such assistance was Modern Slavery Act 2015 s 49(1). This imposed on the Home Secretary a duty to issue guidance in relation to identifying and supporting victims (see [4]). No such guidance had been issued under s 49(1); though internal Home Office guidance had been issued to staff which told them, said Mostyn J:


[9] … Under this guidance the claimants, as potential victims of trafficking, are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance. These benefits or services are provided by means of a contract entered into between the Home Secretary and the Salvation Army….


Two points are confirmed here: that the Home Office accepts the entitlement of victims to certain ‘subsistence payments’; and that these will be administered for the Home Office by the Salvation Army. These payments are provided by a contract (‘the Contract’) between the Home Secretary and the Salvation Army (as explained by Mostyn J at [10] and [11]). Clause 37 – not an insignificant document to be read and understood (or deemed to be so, no doubt) by the victim – enables the Contract to be varied by the Salvation Army by notice; and only ‘in emergency’ by the Home Office.


Illegal reduction of rates by Home Office


The case arose from the fact that the Contract specified rates of payment to different categories of victims (known by the Home Office as ‘service users’). As Mostyn J pointed out (at [13]), the proposed payment ‘is non-means-tested. The victim of trafficking gets these sums irrespective of whether he or she is receiving, for example, voluntary payments from a kindly relative’. The Home Office however, decided that it wanted to reduce rates under the Contract and did so, with effect from 1 March 2018, by means of a ‘Contract Change Notice’ (CCN) sent by email to the Salvation Army as follows:


[19] … The email stated: ‘please find attached a revised CCN on the immediate changes to subsistence rates … we’d like to get this implemented as soon as possible’. The attached draft deleted the third class of victim [ie the ‘service user accommodated [and receiving] subsistence payments] referred to above and stated instead “when a service user is receiving financial support from the asylum support system, under the Asylum Support Regulations 2000, they are not entitled to receive any additional income above the level set in regulation (sic)”. This in turn was followed by further revised Contract Change Notices on 1 and 16 February 2018. The latter became the final version.


This change ‘was duly signed by the Salvation Army; of course, they really had no option but to do so’ ([20]) said Mostyn J. He continued: ‘the procedure was not compliant, in any respect, with Schedule 6 of the Contract’. The Home Office decision under review followed: ‘From 1 March 2018 the cash provided to the claimants was cut by £27.25, or 42%’ ([20]). And the result: ‘[21] … This was a very substantial cut imposed unilaterally by the Home Office’; though it seems that in [their counsel’s] skeleton argument the Home Office tried to palm off the decision as ‘taken independently by [the Salvation Army], without instruction or direction from the [Home Office]. Manifestly, the decision was taken by the Home Office…’.


Thus, ‘the decision was taken on a false basis and cannot stand’. The decision ‘was a partial implementation of a policy which had been announced on 26 October 2017’. However it was:


[22] … not done in a procedurally correct or fair way, and was dressed up as a rectification of a mistake. In public law terms the decision can be characterised as irrational and perverse, as well as being outside the tightly confined variation power within the contract.


‘Subsistence’ and its meaning in the context of victims of trafficking


Mostyn J explained that what the Government had done was to set up a ‘machinery for determining whether someone is a potential or actual victim of trafficking’ (at [9]). This is regulated by internal guidance. Claimants ‘are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance’. So what was the meaning of ‘subsistence’ in the trafficking Directives? Mostyn J replied:


[25] … ‘Subsistence’ when used in [Directives] is a heavily nuanced concept capable of different meanings in different contexts. It does not necessarily mean… that subsistence is that minimal sum necessary to stave off destitution.


So, he said, ‘subsistence’ in this context meant ‘a more expansive view of “subsistence” than the minimum sum needed to stave off destitution’ (at [27]). He continued:


[30] It follows that I do not agree that there is, to quote the author of the Ministerial Briefing of 24 October 2017 (see para 18 above), ‘no clear justification to explain why the state gives potential victims of modern slavery substantially more subsistence than people in asylum accommodation’. On the contrary, I think there are very good reasons why there should be….


Discrimination and European Convention 1950 Art 14


Mostyn J concluded his judgment by dealing with human rights issues (at [33]-[41]). ‘Discrimination’, he said, ‘happens when like cases are treated unalike or when unalike cases are treated alike’ (at [34]). He continued by holding that ‘[34] … Both kinds of discrimination were caused in this case by the contract change of 1 March 2018’. For discrimination to be justiciable, however, the facts of a case must come within one or more of other European Convention 1950 Articles.


Mostyn J explained this by reference to Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 where Lady Hale (for the majority) said that Art 14 ‘[16] … does not presuppose that there has been a breach of one of the substantive Convention rights, for otherwise it would add nothing to their protection, but it is necessary that the facts fall “within the ambit” of one or more of’ the substantive rights (see eg Inze v Austria (1988) 10 EHRR 394, at [36]). So in McLaughlin, said Lady Hale, ‘it is clear that the denial of a contributory social security benefit falls within the ambit of the protection of property in A1P1: see Willis v United Kingdom (2002) 35 EHRR 21,…’.


In K Arts 4 (prohibition of slavery and forced labour) and Protocol 1 Art 1 (peaceful enjoyment of possessions) both applied. So, said the judge:


[37] … I am in no doubt Article 4 does indeed carry with it the positive obligations to provide appropriate support and assistance to the victims of the conduct which is referred to there. I am in no doubt at all that Article 1 of the First Protocol is engaged. The claimants had a pecuniary entitlement under the contract which was abruptly abated. I cannot see how this does not fall squarely within Article 1 of the First Protocol.


Home Office decision-making and lack of reasons


In K there had been no reasons given for the change of rates of payment to victims (for a recent example of the necessity for reasons, there in the case of child asylum seekers affected by a decision, see R (Help Refugees Ltd) v The Secretary of State for Home Department & Anor [2018] EWCA Civ 2098 ‘children from Calais “jungle”’. No reasons were given to K since the Home Secretary made no decision at all (see [40]).


In no sense, said Mostyn J, could the Home Secretary’s discrimination against those affected by modern slavery be ‘objectively justified’ (at 40]). That position was reinforced by the fact that the Home Office, late in the day, had conceded the point by agreeing to amend the contract: ‘the Home Secretary has sold the pass on the question of discrimination’ (at [41]).


The decision to implement the contract on grounds of discrimination against those affected was also quashed with effect from 1 March 2018 ([43]).

Evidence in family proceedings: recent case law and comments

20160419_170156Burden of proof in family proceedings


The law of evidence is mostly defined by the common law. The common law can only be changed by statute or by higher common law authority. Court rules may define the common law, but they cannot change it (see eg British South Africa Co v Companhia de Mocambique [1893] AC 602). This article considers a few recent case law and other developments in the law of evidence in relation to family proceedings.


First the burden of proof: as is well-known, this generally falls on the party who asserts facts in issue. The burden must be established to the civil standard: that is that a fact is more likely to have happened than not. In Re A (Children) [2018] EWCA Civ 1718  the issue before the Court of Appeal was ‘whether the judge [below] fell into error in the findings he made in relation to certain medical evidence and, thereafter, failed properly to consider the totality of all the evidence prior to determining that the outcome of the case had to be decided in percentage terms by reference only to the burden of proof’ (at [5]). In considering this issue, Lady Justice King explained that the judge below had relied on A County Council v M & F [2011] EWHC 1804. In that case Mostyn J had assessed the burden of proof in mathematical terms. He had considered the views of Lord Hoffman and Lady Hale on standard of proof in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 [2009] 1 AC 11, [2008] 2 FLR 141; and then quoted himself (at [16] and in an earlier case of in AA v NA and Others [2010] 2 FLR 1173) where he had said: ‘a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential “cogency”’.


In Re B (above) Lord Hoffman used a mathematical metaphor – no more – to explain operation of the burden of proof:


[2] If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.


It was the burden of proof and how this should be treated which had to be decided by the judge below in Re A (Children) [2018] EWCA Civ 1718.


Court of Appeal: standard of proof in family proceedings


King LJ was not able to ‘agree’ with the judge’s approach which, she said, had been adapted from Mostyn J. The judge had assumed that ‘the use of percentages and or “aggregation” is the proper approach to the judicial function in respect of the simple application of the balance of probabilities’ (at [51]). This was incorrect. King LJ continued (at [52]) by stating that the starting point for definition of the standard of proof ‘remains the test as articulated by Lady Hale Re B (Minors) [(above)]’. This includes the following:


[70] My Lords, for that reason I would… announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.


In Re A it had been necessary to establish how a 10 year old child had died, whether this threatened her siblings and therefore who of the pool of possible perpetrators may have been responsible for her death. King LJ cited with approval the discussion of burden of proof in Nulty Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 (later than Mostyn J’s decision) which included, per Toulson LJ:


[35] The civil ‘balance of probability’ test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a ‘preponderance of the evidence’. In the British Commonwealth the generally favoured term is a ‘balance of probability’. They mean the same.


In Re A King LJ therefore concluded on the standard of proof and Nulty that:


[58] … (iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.


The judge had fallen into error said the Court of Appeal. The case must be remitted for rehearing ([59] and [63]).


Fabricated evidence on assets; but no extravagance add-back


R v K [2018] EWFC 59 (4 September 2018: R v A in the BAILLI case reference), Baker J is, inevitably, long on factual analysis and modest on enunciation of legal principle. The central evidential issue was whether the husband and his business associates had fabricated or exaggerated the husband’s liabilities (around £20M), in an attempt to defeat the wife’s claim. On the evidence he had heard from the alleged lenders Baker J held that the loans were not proved. He treated them as not existing and distributed the couple’s assets accordingly. His judgment included such comments as:


[189] Drawing all these threads together, I have reached a firm conclusion that the loans alleged to been made by C Finance are a fiction. The truth is,… that [the husband] has procured the assistance of his acquaintances and offshore associates to try to create evidence to defeat the wife’s claim. I accept that sums may have been transferred from C Finance and U Properties to the husband but not under the loan agreements alleged by the husband and the other witnesses. Something else was going on. I am not going to speculate what it was. It is sufficient merely to conclude that the assertion that the husband owes substantial sums to C Finance under the alleged loan agreements is untrue.


A second factor in the case was the husband’s continuing extravagant lifestyle. There were substantial arrears of payment of periodical payments; but to award arrears and to add back an equivalent figure (per eg Norris v Norris [2002] EWHC 2996 (Fam), [2003] 1 FLR 1142, Bennett J) might risk double-counting: if H had paid the periodical payments he would have had to curb his extravagance. Baker LJ explained this:


[137] (7) … The husband’s conduct in this case was wanton and deliberate dissipation of assets at a point when he should have been paying maintenance to the wife. But if I were to include the figure claimed for addback, as well as the full arrears of MPS, there would in all probability be an element of double recovery. If the husband had paid the sums due under the MPS order, he would not have been able to spend money on himself in the same wanton way. Accordingly, in this case, I do not think it appropriate to take the figure claimed for ‘addback’ into account as well as the MPS arrears when assessing the appropriate level of the lump sum.


Litigation privilege reviewed and revived after SFO v ENRC


The subject of litigation privilege (LP) in children proceedings rests, it can be argued, on shakey – albeit House of Lords – foundations. In Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 (over a strong minority objection from Lord Nicholls, supported by Lord Mustill) the House of Lords held that care proceedings were not ‘adversarial’ (see further at Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis especially at paras 16.16 to 16.30). Therefore – despite there being nothing in eg Children Act 1989 on the subject – LP did not apply in care proceedings. (Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, CA, probably obiter, seeks to extend this to all children proceedings.) Re L says that for whoever a lawyer acts, if the court has given permission for opinion evidence (Children and Families Act 2014 s 13; Family Procedure Rules 2010 r 25.4) then in children proceedings there is no confidentiality between the lawyer, the client and the court as to production of the report in court.


Re L does not apply to non-children proceedings. In such family proceedings and in civil litigation generally, Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 considered whether LP where a corporate body obtains legal advice and its staff are involved in giving information to a legal adviser. LP was extensively reviewed (judgment was jointly by Sir Brian Leveson P, Sir Geoffrey Voss Chancellor of the High Court and McCombe LJ).


ENRC were anticipating an enforcement raid by SFO. They were carefully considering self-reporting under SFO guidelines and set in motion extensive enquiries as to the background. This involved mostly members of ENRC’s own staff. SFO finally decided to ‘accept ENRC for criminal investigation’: that is to pursue their enquiries further. SFO demanded the documents arising from their legal advice. ENRC asserted advice privilege and LP for documents which had arisen in their internal enquiry. At first instance, Andrews J held that none were covered by privilege. The Court of Appeal allowed ENRC’s appeal. All, save a couple of emails, were covered by LP. Advice privilege did not therefore arise. The ‘dominant purpose’ (of the documents and litigation) test in Waugh v British Railways Board [1980] AC 521 applied to the ENRC lawyers’ documents.


Subject to Re L overriding of LP in children proceedings – if it does – the SFO v ENRC explanation of LP could apply, for example, to papers in a local authority or other public body office; and certainly to any advice given to social, education and health workers.


Police disclosure


In Re H (Children) [2018] EWFC 61 Sir James Munby (following his retirement and sitting as a High Court judge) accepted the invitation from a local authority counsel’s invitation to look at the delay in care proceedings caused by delayed production of documents by third parties (considered recently in ‘Who must disclose what & when?’, David Burrows NLJ [2018] 5 October at 9)  notably the police. Sir James considered this as follows:


  • 1 What can the family court do to avoid delay caused by concurrent care and criminal proceedings?
  • 2 What can the family court do when delay is caused the failures of other government departments?


The problem was delays in production of documents by non-parties, such as police, to care proceedings. It was not, said Sir James, any ‘part of my proper functions… to conduct some general investigation into the actions of third parties… (whether the police, the CPS the Crown Court, or the housing authority)’ nor to look into their actions or inactions may have contributed to what seemed to be ‘wholly unacceptable delay’ (at [18](i)).


So what could the family courts do? First the courts cannot tell non-parties, especially public bodies, what to do (the A v Liverpool principle): that is, as cited by Sir James (at [20]): ‘The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority (per Lord Scarman in A v Liverpool City Council [1982] AC 363)’. Sir James explained this further:


[22] … A family court cannot dictate to another court or agency how that court or agency is to exercise its powers. It follows, secondly, that, absent statutory provision to the contrary, the ambit of family court judicial decision-making is constrained by the extent of the resources made available by other public bodies. So, the family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade. How far can persuasion go? The answer is that the family court can seek to persuade but must not apply pressureHolmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 (at [38]-[39] per Lady Hale).


Witness summons and police evidence


Sir James says that the court has powers as to issue of a witness summons (at [31]) under the jurisdiction conferred by Matrimonial and Family Proceedings Act 1984 s 31G (that part of MFPA 1984 which brought in the Family Court). This section does not create a jurisdiction which was not there before. It merely re-enacts County Court Act 1981 s 55 which deals with witness summonses in the county court. The meat of provision for issue of a witness summons asserts the common law (formerly the subpoena, in this case ad duces tecum (to bring with you a document)) and is in FPR 2010 r 24.2 (derived from Civil Procedure Rules 1998 r 34.2) and PD24A para 1. All this is for a party to the case to require a non-party – such as the police – to produce documents following the steps prescribed by FPR 2010 r 21.2 (derived from CPR 1998 r 31.17).


Section 31G does not, as far as can be seen, give a judge a free-standing power to call for evidence. The disappointing approach of the police to producing evidence into court proceedings, and of which Sir James complains (understandably) – eg under 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings October 2013 – can probably only be corrected on application by application by a party to proceedings for a subpoena to produce documents under r 24.2.


Expert evidence and fees for experts


In an early statement by the new President of the Family Division, Sir Andrew McFarlane, he drew attention to how the fees payable to expert paediatric and other witnesses have been ‘eroded’ over time. Speaking to the  Bond Solon Experts’ Conference in early November he went on: ‘The provision of high-quality professional expertise, where a court has held that such expertise is “necessary” so that the issues relating to a child’s future can be determined “justly”, is plainly essential.’


The legal position is that the opinion (or ‘expert’) witness is in a privileged position. He or she is there to provide the judge with an independent view of the issues or of contested facts in the case; and the expert must do so regardless of who pays his/her bill (CPR 1998 r 35.3(2); FPR 2010 r 25.3(2) and common law). The expert is thus the witness of the court; though the court has virtually no control over what the expert is paid. Mostly children cases, to which Sir Andrew was referring, are governed by legal aid. On legal aid, the instructing solicitor applies for payment; but the fees were fixed in 2013 (under Civil Legal Aid (Remunerations) Regulations 2013 (CLARR2013)).


What Sir Andrew was too polite to say was that the fees were already low in 2013. They are not index-linked and have not been raised since 2013. Though the expert is responsible to the judge, his/her fee cannot be raised by the court (ie only by the ‘Lord Chancellor’ in ‘exceptional circumstances’: CLAGRR2013 reg 2(1); that is to say by the often charmless Legal Aid Agency). Is it not small wonder that the difficulty in finding experts and of resultant delays represents another nail in the coffin of the Minister of Justice’s approach to legal aid and family courts proceedings?


David Burrows

15 November 2018