Happy Christmas children of ‘understanding’: know your rights in 2019

20160419_173301Email to a mature child

 

Imagine a case where a 13 year old (Poppy) has been told she can only seek a second legal opinion if she asks the solicitor now in her case. That first solicitor has already said she thinks Poppy does not have enough ‘understanding’.  She wants to live with one parent, the solicitor recommends the other and will not represent Poppy’s views in court (as in eg Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). The judge says that any lawyer Poppy wants to see for an appeal may only have documents if the court permits it. Believe me, it could happen…

This is an email to Poppy who wants help on an appeal. Her new lawyer has assessed Poppy’s understanding as sufficient to give instructions and to be represented on where she should live.

The text could be used for any child where it is necessary to explain Gillick to the child.

 

Mrs Gillick and her five daughters

 

Hi Poppy

 

Why did the judge’s tell Mrs Gillick: your daughters can go on the pill without telling you? Why can her daughters talk to a doctor without Mrs G knowing? Can you talk to a lawyer about your case without your parent’s agreement? And why should mature children, like you, be listened to by judges where your parents are in court after separation?

 

Mr and Mrs Gillick had five daughters all under sixteen (in law, in UK, anyone under 18 is a ‘child’). She said none of the daughters should be able to have access to contraceptive advice – ie to go on the pill – without her parents’ knowing about it. The House of Lords (the UK’s most senior court) said she was wrong.

 

The health authorities – this was December 1980 – said a doctor can prescribe the pill without parents knowing. Mrs Gillick disagreed. She was the mother of five daughters under 16. She objected to the guidance. There was no suggestion that her daughters were asking for the pill: she objected as a parent.

 

The main speeches (ie judgments in the House of Lords) in Gillick were given by Lord Fraser and Lord Scarman. What they said is still the law nearly 40 years later. They explained how a child’s maturity and understanding changes as a child gets older. Parents must recognise this. So must the law. Lord Scarman (one of my favourite judges of all time) explained this:

 

The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….

 

Lord Scarman was saying: parents (and judges) must back off as a child gets older. As their ‘understanding and intelligence’ increases everyone – including parents and judges – must have more and more respect for these views.

 

‘Understanding’: what is to be understood?

 

Understanding also depends on what we are talking about: understanding of what you want to eat (ie not what you should eat) is well-developed for a very young child. Tiny children know what they don’t like. Lots of small children don’t like broccoli or cabbage. On the other hand an ‘understanding’ of physics may still be limited, even when you are much older (I can’t claim to have much of an ‘understanding’ of physics; but get me on history, and I’m much better).

 

Gillick applies not just to doctors and broccoli. It applies also when you are involved in court proceedings where your parents have separated. There are all sorts of English laws which say that a child’s views must be listened to by judges.

 

In a court case between parents about where a child should live (‘custody’ or ‘residence’), if a child is old enough to say what they think (express ‘a view’) they should be listened to. If they want to be listened to, this could be through a welfare officer or a lawyer (ie a solicitor).

 

The judge may not agree with what the child wants. That is a different question. But the judge must – for that is the law in England – listen to what a child has to say.

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Children and private law: to claim the rights – Part 2

20160924_142217Procedure for a child’s application

 

The first post in this series outlines the rights of children and their views in proceedings concerning them. This part will look at court procedures procedure for how rights – a child’s ‘views’ – are dealt with as a court process; or how the rules – so far as they can be understood – deal with those views. Part 3 will look at how a child’s views are dealt with in practice, and what court procedure rules actually permits.

 

The law sources of information as to a child’s application are varied. They are statutory under CA 1989, in the rules (FPR 2010 and perhaps CPR 1998), in practice directions and in scattered case law decisions. Each of these sources has to be threaded into a coherent whole by the child – or the child’s adviser – who wishes to apply to the court. This note, as already explained, deals only with private proceedings (see part 1): that is, proceedings under Children Act 1989 (CA 1989) were children of ‘understanding’ wish to make an application, or to join in proceedings between their parents (eg to say to the court where they would like to live).

 

First, which court? Some family proceedings are issued in the Family Court, some in Family Division of the High Court. And don’t let anyone tell you we now have a unified family court, as this example shows.

 

Shortly after CA 1989 came into operation and children started making their own applications to the family courts the then President of the Family Division issued a practice direction which directed that children applications be in the High Court. Practice Direction of 22 February 1993 (Applications by children: leave), [1993] 1 WLR 313, [1993] 1 FLR 668 says:

 

Under section 10 of the Children Act 1989, the prior leave of the court is required in respect of applications by the child concerned for section 8 orders…. Such applications raise issues which are more appropriate for determination in the High Court and should be transferred there for hearing.

 

Given the final paragraph of the practice direction, it is likely that if a child wishes to apply to be joined in family proceedings that also should result in a case already before the court being transferred to the High Court.

 

A child’s views in section 8 proceedings

 

Next it is necessary to look at the types of case where a child may want to have their views heard in private proceedings.

 

(1) A child’s free-standing application in CA 1989 Pt 2 proceedings

 

In Re SC (A Minor) (Leave to Seek Residence Order) [1994] 1 FLR 96 Booth J was dealing with a 14 year old child who wanted to apply to live with the family of a long-standing friend. Booth J was quite clear that SC was entitled to make the application (rather than only the person with whom the child proposed to live) (at 100):

 

… The Act enables a child to apply for leave to apply for a s 8 order and a residence order is not excluded. In my judgment the court should not fetter the statutory ability of the child to seek any s 8 order, including a residence order, if it is appropriate for such an application to be made. Although the court will undoubtedly consider why it is that the person in whose favour a proposed residence order would be made is not applying, it would in my opinion be wrong to import into the Act any requirement that only he or she should make the application.

 

Application is made under CA 1989 s 10(2)(b) and (8)

 

(2)     The court may also make a section 8 order with respect to any child on the application of a person who— … (b) has obtained the leave of the court to make the application.

(8)     Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.

 

The child may pursue the application with a guardian (FPR 2010 r 16.4). This is the same as would be the case if she was taking ordinary civil proceedings by a litigation friend (CPR 1998 r 21.2), at least in theory. Because this is children proceedings it is more complicated than that.

 

Unlike in civil proceedings, a child can take proceedings under CA 1989 (see FPR 2010 r 16.6(1)) and do so without a guardian if the child has permission from the court or a solicitor is willing to accept instructions from her (FPR 2010 r 16.6(3)):

 

(3) [A child may take CA 1989 proceedings without a children’s guardian where] either –

(a) the child has obtained the court’s permission; or

(b) a solicitor –

(i) considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and

(ii) has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.

 

This provision replaces one which was inserted into Family Proceedings Rules 1991 (introduced alongside CA 1989) to deal with s 10(8) applications (formerly FPR 1991 r 9.2A(1)), a provision which was explained by the Court of Appeal in Re CT (mostly in the context of what may be done if a person – a parent, perhaps, or the court – considers that the child does not have sufficient understanding to consult the solicitor (see below)). Till that question is raised – if at all – the child can conduct the proceedings represented by a solicitor as if she were a private client; just as the hypothetical child in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 could consult a GP about contraceptive advice as if a private patient.

 

(2) A child wants to apply to join in existing proceedings which directly concern the child

 

There is no doubt that a child can be joined as a party to proceedings which concern him or her (r 12.3(3)); but the procedure whereby that is achieved and by what criteria are not clear. By contrast CPR 1998 r 19.2 restates the common law:

 

(2) The court may order a person to be added as a new party if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

 

Application is made in the existing proceedings (CPR 1998 r 19.5). In Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 the Court of Appeal dealt with three (of a family of six) children, whose views were not being independently represented by their children’s guardian. They considered they could no longer represented by him and consulted a solicitor. The judge refused to grant the application for separate representation (now under FPR 2010 r 16.6(5)). Thorpe LJ explained how the courts must adapt and recognise the development of children’s rights:

 

[26]   In my judgment, the rule is sufficiently widely framed to meet our obligations to comply with both Art 12 of the UN Convention and Art 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty­-first century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision-­making processes that fundamentally affect his family life.

 

In agreement with Thorpe LJ, Wall LJ commented that the guardian ‘would be advancing to the judge’ for the boys a case which was ‘directly opposed to what the boys were actually saying’. By refusing representation to the boys – including a 17 year old – the first instance judge overlooked the need for them ‘to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge’.

 

(3) A child whose instructions conflict with the child’s guardian; and the child wants his or her part in the case dealt with on the child’s instructions

 

In CA 1989 Pt 4 (care) proceedings it is relatively clear that a child can part company with her solicitor. If that happens FPR 2010 r 16.29 (which deals with solicitors appointed in care proceedings under CA 1989 s 41(3)) provides that:

 

(2) If a solicitor appointed [in care proceedings] considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

 

Matters in para (3) include the views of the children’s guardian. If he or she is against (save on grounds of understanding) the child would normally prevail.

 

There is no equivalent provision in Pt 16 for private proceedings; but this situation is so close to that in r 16.29(3) and Mabon (above) that, I suggest, conduct of the case for the child in s 8 proceedings is likely to be ‘in accordance with instructions received from the child’ as in r 16.29(3). Some lawyers may disagree. There is no clear guidance that I can find for a child in the law or the procedural rules.

 

Clara and her solicitor

 

Imagine Clara from Part 1. Her case is under (2) above. Her parent’s case is already under way (like the Mabon boys). If she finds out that there is a way she can join in the proceedings and that she can find a solicitor to help her (with legal aid: assessed on her means (if any)), then the solicitor will have to assess her ‘understanding to give instructions’ (in the same way as under r 16.6(3)). Application can be made under FPR 2010 r 18.7 – an application in the course of proceedings – for an order that Isobel be joined. It will then be for the court to decide to what extent it takes into account her views (see eg Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347).

 

If she is introduced to a solicitor (eg by one or other of her parents, or by another relative) so be it. In S v S (Relocation) [2017] EWHC 2345 (Fam), [2018] 1 FLR 825 children of 15 and 13 were taken to see a solicitor (the duties of such a solicitor is considered at [31]-[32] in that case). Peter Jackson J (now a Court of Appeal judge; and ever a wise and perceptive children lawyer) reflected on the extent to which the court is entitled to question the wisdom (or not) of a course proposed by a child of understanding:

 

[23] … These boys are old enough to instruct lawyers to ensure that their wishes and feelings are fully represented. At their age, those wishes and feelings are a very important element in their welfare. That is so even if the wishes and feelings are unwise. There is nothing in the law that says that the wishes and feelings of older children should be wise or reasonable. They may be foolish or immature but respecting children’s points of view must, in the case of older children, accept to some extent the risk of them making mistakes…. This is not… the court washing its hands of the boys but, rather, taking a practical view of the real life of this family.

 

Is it appropriate for a solicitor to be instructed at all?

 

Finally, what of the position where a party or the court considers that the child may not be of sufficient understanding to consult a solicitor. That was considered by the Court of Appeal as long ago as May 1993 (when CA 1989 had been in force for less than 18 months). In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49 (where I represented CT as CA 1989 was bedding down on the statute book).

 

CT, aged 13, wanted to move from her adoptive parents to her natural family in South Wales. She needed my agreement to act (Family Proceedings Rules 1991 r 9.2A, the predecessor to FPR 2010 r 16.6(3)). With legal aid in place we applied for ‘leave’ (as then) under CA 1989 s 10(8). CT’s adoptive parents made her a ward of court which Thorpe J confirmed. She would be represented by the Official Solicitor. As she saw it, with 10p in a coin box in her school she could ring me. 10p gave her no time on the phone to the OS representative, even if he or she could be found. As a legal representative he was nothing to her. And anyway, as she said to Thorpe J after his decision (he refused to hear her beforehand): ‘I wants my own solicitor’.

 

Claire appealled against the wardship order of Thorpe J. In the Court of Appeal Waite LJ considered as one of the main issues whether assessment of understanding ‘is a matter for consideration by the court, or whether it is exclusively a matter for assessment by the solicitor who is deciding whether or not to accept instructions’ ([1993] 2 FLR 278 at 282). The court had allowed CT’s appeal. She should not have been made a ward.

 

But what of the judge’s anxieties which had led to wardship in the first place?

 

The result of ruling out wardship is that the judge will be left, at any future hearings of the case, with the same anxieties that led him to explore means of imposing a guardian ad litem in the first place. I have stressed that there has not so far been any suggestion that Mr Burrows is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that C is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge – and for that matter to other judges who may find themselves confronted with a similar situation – simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions?

 

The questions for the court on this aspect of the appeal were: was it for the solicitor alone to define the child’s understanding thus for the child to proceed alone; or can the court on its own initiative ‘or on the application of another party, to go behind the solicitor’s view and examine for itself the state of the child’s understanding and come to a conclusion which may differ from the view taken by the solicitor?’ Waite LJ preferred the second course. In cases of doubt about a solicitor’s assessment of a child’s understanding the court would have ‘the ultimate right to decide’ ([1993] 2 FLR 278 at 289). He hoped that the solicitor’s view of the child’s ability to instruct ‘would be rare’.

 

Clara’s way ahead

 

For Clara the first step will be to understand that she has rights and to get to see a solicitor and apply for legal aid. For the solicitor it will then be a matter of threading her or his way through the various forms of law, procedure and common law outlined in this article. And if anyone objects to Clara and her solicitor’s proposed course of legal action, they will need to dig out Re CT and follow it within the terms explained by Waite LJ.

 

And if Clara’s solicitor is to be shifted, that raises a whole fresh area of law. Questions of her ‘understanding to give instructions’ (FPR 2010 r 16.6(3)(b)(i); Gillick v West Norfolk and Wisbech AHA (above) and eg Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J) arise. In law that involves a review of the case the court perceives are the issues in the case, and the child’s ability to understand; and must not be confused with welfare issues in the particular case (see eg Briggs LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note (above); and see Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017 at Chapter 2).

Private law rights of children: Part 1

20160418_164836-e1544888626602.jpgA child’s ‘views’ in the family courts

 

How many children know they have rights to ‘express their views freely’ in court proceedings – especially in family courts – where a court is making a decision which affects a child? And if they don’t know, how are they going to find out? Even if they do know about their rights, how do children get their views before the judge? What are the steps they must take to get what they want to say before the court?

 

This first post in a series of three will say a little bit about what rights there are for children. Part 2 will look at procedure for how rights – views – are dealt with as a court process. Part 3 will look at expression of a child’s views, wishes and feelings in practice, and what court procedure rules actually permits.

 

I don’t know what is taught about children’s rights in individual schools. As a family lawyer I have a good idea that children who are the subject of proceedings are told very little about what their rights are. Few judges, I suspect, go on the front foot to comply with the law and to find out themselves what a child’s views are. And I fear, many specialist family lawyers are not sufficiently versed in the intricacies of children law to know what they need to do to help children to apply in private law (Children Act 1989 (CA 1989) Pt 2) proceedings; or to be sure that a child talks to a judge when it is appropriate.

 

Children and Children Act 1989 Pt 2 proceedings

 

Children’s rights are likely to arise in private children proceedings (Children Act 1989 (CA 1989) Pt 2 and especially s 8). This will arise in three sets of circumstance explained in this article:

 

  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); and as did CT in Re CT (below));
  • A child who wants to join in existing proceedings (with or without representation: eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P); or within existing CA 1989 Pt 2 proceedings (eg between the child’s parents), for the child to proceed alone or represented by the child’s own lawyer (eg Mabon v Mabon (below));
  • A child whose instructions to the child’s instructed solicitor conflict with those of the child’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (on analogy with FPR 2010 r 16.29(2)(a) for Pt 4 proceedings)

 

This article does not deal with CA 1989 Pt 4 proceedings (care and supervision orders; also called ‘specified proceedings’ (CA 1989 s 41(6)). There a children’s guardian and a solicitor for the child are appointed by the court (CA 1989 s 41(2) and (3)).

 

Many experienced children lawyers have difficulty in unravelling what type of children proceedings are involved in individual cases (eg Black LJ (now Lady Black in the Supreme Court) in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027: see Preface to my Children’s Views and Evidence by Bloomsbury Professional, 2017 https://www.bloomsburyprofessional.com/uk/childrens-views-and-evidence-9781526503176/  (and see Chapter 6)).

 

A child’s ‘views to be expressed freely’

 

United Nations Convention on the Rights of the Child 1989 Art 12, as relevant to a child’s views on a case, 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.

 

Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, on a child’s views, echoes the position on ‘views’: ‘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.’

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (the child was seven) Ryder LJ identified CA 1989 s 1(3)(a) as a ‘fundamental principle’ English law: that is ‘the ascertainable wishes and feelings of the child concerned’ in a case must be considered by a court. This provision said Ryder LJ is ‘mandatory’; though the court has a choice (ie a ‘discretion’) on the extent to which views are taken into account (see [38]).

 

Participation

 

A child is therefore entitled to ‘participate’ in the proceedings which are about her:

 

[44] … The 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 section 1(3)(a) CA 1989 like that in article 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

A child must have his or her views heard, but not necessarily followed. This was explained by Lady Hale of an eight-year old child in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 [2007] 1 FLR 961 where she said of D, now aged eight, who did not want to go back to Romania (as described by Lady Hale at [20]-[22]), how should his views be considered:

 

[57]… As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. There is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

A principle of ‘universal application’

 

To ensure every child participates in proceedings about that child the court must ask: how is the child to be heard? In Isobel’s case – says the UN – she is entitled to ‘express her views’, but how does she go about getting her views heard by the judge? Ryder LJ helpfully described hearing the child’s views as a ‘fundamental principle of procedure’; but how does that principle operate in practice? In Re D [2006] (above) Lady Hale said:

 

[59] … Children should be heard far more frequently [in Re D it was in Hague proceedings]. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child’s own or give them very little independent weight….

 

Lady Hale considered the ‘three possible ways’ (at [60]) of hearing a child’s views:

 

  • An interview with a CAFCASS officer, who is not only skilled and experienced in talking with children
  • The judge seeing the child
  • Solicitor representation.

 

Of the last Lady Hale said (at [60]):

 

… Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.

 

So, imagine a child aged twelve: Clara. She does not agree in different ways with each of her parents. She does not want to live with her father as is being proposed by him to the court. A court welfare officer is ambivalent as to whether she should stay with her mother or her father. Clara says she wants to live, and spend more time, with her mother. She is content to see her father. On the basis of what Lady Hale says she should be separately represented.

 

Part 2 will consider the child who knows of his or her rights, and what she – Clara – does about claiming them. Part 3 will look at what practical arrangements are made for children and how these fit with the Convention and Charter expression of the rights.

Family proceedings: open justice and legal principle – Part 1

20160422_155058.jpgPublic hearings: what do the rules say?

 

This series of posts deals with most proceedings on family breakdown, and the extent to which they are – or should be – in open court (Part 2). To what extent is someone who attends court is entitled to know before-hand about the proceedings; and if so, what? This post looks at some underlying legal principles. To make the needlessly complex subject even more complex, different rules apply according to whether couples are married or not (see eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513, Mostyn J).

 

The common law and statute law in this area apply to all children and domestic abuse proceedings, whether a child’s parents were married or not. Procedural rules depend on whether your proceedings are covered by Family Procedure Rules 2010 (FPR 2010), as are all proceedings on married family breakdown, children proceedings and domestic abuse. Couples who seek help from the courts to deal with their property where they were not married are mostly outside what follows.

 

Secrecy and family proceedings

 

FPR 2010 rr 27.10 (secret court hearings) and 29.12 (release of documents to non-parties) deal with secrecy in family proceedings. First r 27.10 says that, in the case of family courts hearings under the rules (not family cases where couples were not married) are in secret (‘private’), save where rules say otherwise (eg the rarely occurring defended divorce). In law ‘private’ does not mean what the rule-makers think: see Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 (below and in Part 2). Rule 29.12 deals with release of documents ‘to any person without permission of the court’; and it is assumed that such release of documents applies to journalists who attend court.

 

To understand these two rules certain basic legal principles need explanation:

 

  • What is the common law and how can it be overridden?
  • Who makes FPR 2010, under what statutory authority and what are the rule-makers powers?
  • Can rules override the law?
  • When do judges make new law?
  • What is the common law in the field of open justice; and to what extent is this the default position for court hearings?

 

Each of these applies to the following areas of this subject:

 

  • Public, private and secret hearings of cases covered by FPR 2010 (ie not family proceedings which are not covered by FPR 2010 (eg where a cohabitant couple seek a decision on their property from the court);
  • Release of court documents to non-parties (including the press and other media) for them to understand hearings they may attend;
  • Release of court documents after the hearing; and
  • Anonymisation of family cases

 

The first of these areas will be considered here and a succeeding post (ie the open justice principle in Part 2). The remaining three areas will be considered later.

 

Fundamental principles: common law and statute

 

The extent to which family court proceedings should be in secret is governed almost entirely by the common law (with a smattering of codifying statute law: eg Administration of Justice Act 1960 s 12(1); and see Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA (considered in Part 2).

 

Explanation of the term ‘secret’ will illustrate how the common law works. In Allan v Clibbery the Court of Appeal (Dame Elizabeth Butler-Sloss P and Thorpe LJ) were concerned to establish the venue for the court’s consideration of an application by Ms Clibbery to be allowed to live in Mr Allan’s flat in London. The court had said no. Ms Clibbery gave all the papers to a newspaper. Mr Allan wanted the newspaper prevented from publishing anything. Munby J refused a restriction order; and the Court of Appeal said he was right.

 

In the course of her judgment Dame Elizabeth said of the venue for court hearings; and this is what establishes the common law which cannot be changed by rules (see below):

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

So, as will be explained in Part 2, a hearing could be ‘in secret’, in ‘open court’ and, as Dame Elizabeth Butler-Sloss P explained, ‘in private’. The rules cannot change this. This then raises some very basic points of legal principle.

 

Statute law and delegated legislation

 

The highest legal authority is statute law. Delegated legislation, because made under statute, comes a step down the statutory hierarchy. Subject to that, the common law binds all of us, save where it is overridden, or re-defined, by statute law. Neither common law nor statute can be overridden by delegated legislation or (in the case of common law, by superior court authority: High Court judge overridden by Court of Appeal; Court of Appeal by Supreme Court); save in the case of enforceable Henry VIII powers (R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387: see Lord Neuberger at [25] A Henry VIII power is ‘… a delegated power under which subordinate legislation is enabled to amend primary legislation’. Any court must test very warily against the powers granted by Parliament to a minister.)

 

A problem for all of us is to define what is the common law; and to know when it changes. Statutes are written down and published. If the copy of the statute you refer to has been updated (which the Government legislation website generally achieves) that, subject to judicial interpretation (see in relation to Re F (Part 2)), it is the body of UK statute law. In what follows I shall do my best to say what I think is the common law in the areas under review.

 

For the avoidance of doubt, the common law applies equally to family and to all other court proceedings. As Sir James Munby, then Munby LJ, said of a family finance case, Richardson v Richardson [2011] EWCA Civ 79:

 

[53] … The Family Division is part of the High Court. It is not some legal Alsatia [ie an area near Blackfriars between the Thames and Fleet Street: in the 17th century the lair of a variety of criminals, now mostly barristers chambers] where the common law and equity do not apply….

 

Common law and the open justice principle

 

Family Procedure Rules 2010 are made by Family Procedure Rules Committee (FPRC) under powers in Courts Act 2003 ss 75-76. Sections 75-76 give powers eg to ‘modify’ rules of evidence; but no power to override the common law that I can see: no Henry VIII power for a family proceedings rule-maker. So if rule-makers are to override the common law on the open justice principle – if that is what they have done in eg FPR 2010 r 27.10, as Part 2 will explain – what powers do they have to do this?

 

It is perhaps too obvious to say, but I’ll mention it all the same. Any power used by any public body or person (eg a government minister) must be traceable to a statutory source. A statutory body, like the FPRC – and the same goes for a local authority – cannot act outside what it set out in their empowering statute. (A curious side point is that Parliament told the rule-makers to make the rules ‘simple and simply expressed’ (Courts Act 2003 s 75(5): a nice judicial review point would be to challenge the complexity of the rules – eg for child representation under FPR 2010 Pt 16. The applicant would ask the High Court to find the rule in question unlawful. After all even Lady Black (as she now is) declared aspects of Pt 16 to be ‘of complexity’ (in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027) and misunderstood them, in my view (as explained in Children’s views and evidence by David Burrows, Bloomsbury Professional, 2017 at Preface and Ch 6)).

 

Rules cannot change the law

 

There is ample authority for the proposition that a rule only regulates the law: it cannot create or change the law (save within powers in its empowering statute). That applies changing all primary law (statute and common law). Thus see eg Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933:

 

[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 [per Lord Denning MR].

 

Two more court of appeal authorities will suffice on this point: British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628; and Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75.

 

The question in this post will therefore be: what is the common law; and does the rule diverge from it? If the answer to the second question is ‘yes’, then the rule may be ultra vires (outside the powers of) the rule-maker. It can be challenged on judicial review.

 

As will be explained in Part 2, the two rules – FPR 2010 rr 27.10 and 29.12 – are not, in my opinion, compliant with the common law. Part 2 explains what I understand to be the common law – mainly the open justice principle. I shall base what I say on decided cases. I will show why I believe the rules to be unlawful in the sense that they are inconsistent with the common law and are outside the powers of the rule makers.

 

Aspects of the rules of precedent

 

It is appropriate here the common law rule as to what aspect of a judgment creates law, and what does not. High Court and Upper Tribunal judges and still higher judges (Court of Appeal and Supreme Court) create law. What they say binds other courts and mostly their brother and sister judges of similar level. However, law only represents what is necessary as a legal finding, to decide a case (the ration decidendi). Anything else is said ‘by the way’ (obiter) and, if said by a High Court judge and higher, is probably important – authoritative – but it does not bind any other judge (or magistrate or tribunal).

 

One example will suffice. In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J helpfully sets out in his judgment precisely what he was asked to do in the case before him:

 

[5] All I am being asked to decide today is whether the existing [reporting restrictions] order which restricts the reporting of the proceedings, should be lifted, or modified, at this point.

 

He explained why he was not prepared to extend permission to the press to report what went on in the Gallagher-Appleton case. He then went on to comment on release of documents from court cases as follows:

 

[13] This strict ‘watchdog’ [media] role is confirmed by the terms of the rules themselves. Rule 27.11 of the FPR 2010, which permits the admission of the press, confirms that the proceedings are held in private…. Further the press are not allowed any access to documents whatsoever – see FPR 2010, r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly….

 

This paragraph precisely shows up the ratio point. The first sentence deals with what Mostyn J was asked to decide. The rest of the paragraph is comment (obiter): it is the judge’s view of a related issue, but not one he was called upon to decide. In spite of this, the comment of Mostyn J is treated by many lawyers as saying r 29.12 prevents the press seeing documents in a family case. I very much doubt that this is in truth the law; but that is for another day… In the meantime, Part 2 will look at what is meant by the open court principle and how this applies in family proceedings.

Divorce reform, 2018 style

20160419_173301

Reducing family conflict Reform of the legal requirements for divorce, September 2018

 

(1)        INTRODUCTION: LAW ON MARRIAGE BREAKDOWN

 

Divorce reform

 

Divorce reform is proposed by the government (Reducing family conflict Reform of the legal requirements for divorce, September 2018 Ministry of Justice) (the ‘government paper’). Any question of reform raises two immediate, but separate, questions:

 

  • 1 What is a marriage; and
  • 2 On what grounds should it be dissolved?

 

This paper will answer the second question by proposing that the ground for divorce be irretrievable breakdown (as the government paper proposes); but it will touch on questions in relation to ‘What is a marriage’ first. The facts on which breakdown is based should be reformed from the present law, so that those facts are either (1) consent (ie immediate divorce on joint demand, on joint filing of a request); or (2) living apart for a year.

 

To that end divorce reform in law terms could be by amendment of the existing Matrimonial Causes Act 1973 (MCA 1973) s 1. The proposal in the previous paragraph, and as explained later, could look like this (additions (ie amendments) are the underlined passages and with the present ‘facts’ deleted):

 

Draft clause 1: DIVORCE REFORM BILL

 

1 Divorce on breakdown of marriage

(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage An application for a divorce order may be presented by one or both parties to the marriage on the ground that the marriage has broken down irretrievably.

(2) [The body [A]] dealing with an application for divorce The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless one or both parties satisfies [A] either

(a) that the parties both consent to their marriage being dissolved; or

(b) that the parties have lived apart from one another for a period or periods of one year prior to the presentation of the application 

the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

(3) On an application On a petition for divorce it shall be the duty of [A] to consider to inquire, the facts alleged by the applicant for a dissolution under paragraph (2) above into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.

(5) A divorce order shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six weeks from its grant (5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection….

 

What is a marriage?

 

First, however, it must be recalled that all this is about marriage breakdown: not any other relationship breakdown where a couple have lived together and, perhaps have children. They may have lived together, they may have gone through a ceremony of marriage in their own religious establishment; but for divorce and family finance purposes, they will not be married. Thus, something must be said about the increasing challenge raised by muddle law on what is a marriage which can be dissolved (ie when does divorce apply in the first place?). Whilst on the subject of divorce, the government should also look at the arcane – especially in terms of drafting – of Marriage Act 1949 which was consolidated from earlier legislation which dealt mostly with Christian marriage.

 

This is important. As our law stands marriage – even if it is a void marriage – is an essential pre-requisite to financial support for the economically weaker spouse (often the wife) or partner. That is to say, the benefits of Matrimonial Causes Act 1973 Pt 2 can only be used to support that spouse and any children, if the claimant spouse or partner comes within Pt 1 (ie can get a divorce, judicial separation or nullity of a marriage). None of these rights apply if there is no marriage. Should not our ecclesiastical law-based marriage laws be reviewed at the same time as divorce?

 

The government paper speaks of ‘reducing family conflict’ (its heading). It must always be remembered that English law has still not managed to find a 21st century law which deals with support for the weaker partner where couples do not marry. Most children law – eg Child Support Act 1991 and Children Act 1989 – does not distinguish between parents who are married and those who are not. This primitive area of family law needs urgent attention also; though it is not susceptible to easy law-making, as with divorce reform. A simple redraft of one section of a statute will not be enough, partly because there is almost no statutory provision for cohabitants, as yet.

 

Divorce reform

 

These questions are prompted by the government paper Reducing family conflict etc. Its object is to make divorce less acrimonious; and especially for children. It proposes to so this by amending Matrimonial Causes Act 1973 (MCA 1973) s 1, to provide still that ‘irretrievable breakdown’ is still the sole ground for divorce (s 1(1)); but it is short on proposals as to how that is to be established.

 

The paper wants to avoid contested divorces – published, as it was, in haste after the Supreme Court Owens v Owens [2018] UKSC 41. But, suppose spouse P says that their marriage has irretrievably broken down, and files a document in the appropriate registry – the Family Court under the present law – to say so. Spouse R does not agree. What is to be done then? This note contains a proposal.

 

The present law, framed in 1969 (Divorce Reform Act 1969 ss 1 and 2), provides that if P seeks a divorce she or he must prove one or more facts – adultery, behaviour of R such that P cannot be expected to live with him, desertion for two years (very rare nowadays), living apart for two years (and R consents to the divorce) and five years apart. Until Owens the vast majority – over 99% – of divorces went through undefended.

 

Before a marriage can be dissolved, what is a marriage?

 

 

(2)        MARRIAGE

 

What is a marriage?

 

There can be no divorce without a marriage. Whether or not there was a marriage depends on the formalities adopted at the time of its inception; or of any presumptions available to one or both parties as to its existence. If there is an issue as to whether there was a marriage separate from divorce (eg where a widow’s pension is claimed, if registration is doubted or in the context of immigration) application for a declaration as to marital status may be made under FLA 1986 s 55 (where inception of marriage is explained). A valid marriage must be in accordance with Marriage Act 1949 (see under FLA 1986 s 55)

 

Inception of marriage (or not) can be categorised as follows:

 

  • (1) A valid marriage is one celebrated in accordance with Marriage Act 1949; or sufficiently within the terms of the 1949 Act for the marriage to be recognised as valid (Collett v Collett[1968] P 482, [1967] 3 WLR 280, Ormord J; A v A (Attorney-General intervening) [2012] EWHC 2219 Fam, [2013] Fam 51, Moylan J (also as MA v JA)). This confers on spouses the rights which accompany marriage: eg tax benefits, entitlement to pensions, inheritance advantages etc. On breakdown of a marriage parties are entitled to seek financial provision under MCA 1973 Pt II.

 

  • (2) A marriage may be voidable or void. This happens occurs where a couple have not complied with requirements of a valid marriage (as considered further at MCA 1973 ss 11 and 12). Their union may be annulled as being a marriage which is void (the marriage is treated as not having taken place, save for MCA 1973 Pt 2 financial relief claims); or it is voidable (married till avoided). It will be open to either to apply for MCA 1973 financial provision; and they will be able to divide their assets or deal with maintenance (Akhter v Khan & Attorney-General [2018] EWFC 54, Williams J: void under MCA 1973 s 11(a)(iii)).

 

  • (3) Presumed marriage – even though formalities may not have been complied with the couple will be presumed married where validity of a couple’s marriage can be presumed by a form of ceremony and ‘cohabitation as a married couple for a substantial period of years’ (Chief Adjudication Officer v Bath [2000] 1 FLR 8, CA; Hayatleh v Modfy [2017] EWCA Civ 70).

 

Marriage Act 1949

 

The Marriage Act 1949 consolidates earlier legislation whose roots are to be found in ecclesiastical law. Part I deals with restrictions on marriage (ie capacity); Part II deals with marriage according to the rites of the Church of England; and Part III deals with marriage under a superintendent registrar’s certificate. In Part I, s 1 (prohibited degrees) and s 2 (persons under 16) state expressly that non-compliance makes a marriage void. Section 3 requires parental consent (unless dispensed with) to the marriage under Part III of a person under full age, but s 48(1)(b) makes plain that non-compliance does not invalidate a marriage. Sections 25 and 49 state expressly that a marriage is void if the parties to it ‘knowingly and wilfully intermarry’ in contravention of the requirements specified in those respective sections. A marriage which does not comply with s 49 are void, but only where ‘knowingly and wilfully’ undertaken (see eg A v A (Attorney-General intervening) [2012] EWHC 2219 Fam, [2013] Fam 51 [100]-[102]; Chief Adjudication Officer v Bath [2000] 1 FLR 8, CA).

 

A marriage is void under Marriage Act 1949 where it does not comply with one or more of the conditions in s 49 which include (adopting the numeration in the section):

 

(a)without having given due notice of marriage to the superintendent registrar;

(b)without a certificate for marriage having been duly issued, in respect of each of the persons to be married, by the superintendent registrar to whom notice of marriage was given;…

(f)in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated;. . .

(g)in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superinentdent registrar;

(gg)in the case of a marriage on approved premises, in the absence of the superintendent registrar of the registration district in which the premises are situated or in the absence of a registrar of that district; or

(h)in the case of a marriage to which section 45A of this Act applies, in the absence of any superintendent registrar or registrar whose presence at that marriage is required by that section.

 

 

(3)        DIVORCE REFORM

 

Divorce reform: government proposals

 

The essence of the government proposals is to be found towards the end of its paper, summarised as:

 

‘The Government therefore proposes to repeal the requirement for petitioners to give evidence of one or more facts and to replace it with a process of giving notice of irretrievable breakdown. In this process, the person seeking the divorce (or potentially the couple jointly) would give notice to the court of the intention to divorce, stating their belief that the marriage had broken down irretrievably.’

 

The paper goes on: ‘Irretrievable breakdown’ remains the ‘sole ground’ for divorce (p 26) as proposed by the government:

 

‘… Irretrievable breakdown would therefore continue to be the sole ground for divorce. In the two-stage decree process that we propose to retain, the court would not be able to grant the first and interim decree (the decree nisi) if it was not satisfied that the marriage had broken down irretrievably.’

 

That is uncontroversial, surely. But supposing R (the non-filing spouse) does not agree. He or she says the marriage has not irretrievably broken down. The proposals continue (pp 26 and 34): ‘The Government also proposes to abolish the ability to contest the divorce as a general rule….’. The paper goes on that it is intended ‘to remove the opportunity to contest (“defend”) the divorce because it serves no practical purpose. This has been increasingly a feature of divorce law in comparable jurisdictions.’

 

That means divorce on demand, if there is no way R can answer and respond to – or ‘contest’ – the petition. It would also be against most principles of English law and of fairness generally. European Convention 1950 Art 6 demands that anyone have a fair trial of an issue in civil court proceedings; but will divorce in any way be a justiciable issue?

 

In reality that brings us back full circle to where the law reformers were in 1969: if one person asserts something in legal or administrative terms, natural justice requires that the other party be heal in reply. In Latin the long used legal term is; Audi alterem partem (hear the other side).

 

So how does P prove ‘irretrievable breakdown’ if the consent application for divorce is not acceptable? That P should not be expected to live with R. Oh no: that is where Mr and Mrs Owens found themselves nearly two years ago…

 

Divorce on demand

 

So why does not Ministry of Justice just let P say: ‘I don’t want to be married any more’? That is then an end of it: no court fee, no administrative process. It does not matter whether P’s spouse or civil partner wants his and P’s marriage to subsist. That is it. That is what the proposals appear to say. Yes, that is what they say; but that is to point out the emperor is wearing no clothes. There would be surviving MPs (mostly conservative?) who could not stomach a bill if it said that marriage dissolution could be on demand.

 

The consultation says it does not want divorce on demand. But as at present proposed, as far as I can see, a divorce will be like buying sweets or going shopping in a supermarket (except that the filing fee (if retained) is likely to be a lot more that most supermarket expenditure). It will be a matter of asking for your divorce decree, and – as with buying (say) a Mars bar – tendering the right cash: demand (I want my marriage dissolved and here is the fee) and supply (one decree nisi, sir). That may be what the government want. It may be the right thing (I am not so sure). But let us all say so.

 

(4)        DIVORCE: REGISTRATION OR COURT PROCESS

 

Divorce: an administrative issue, with any justiciable element?

 

If there is to be any justiciable – ie tested on evidence – question of whether my marriage has irretrievably broken down then there must be a procedure which lets in an answer (defence, reply call it what you will); and a standard by which a judge can test the question of irretrievable breakdown. The question – what is meant by ‘irretrievable breakdown’; and how is it tested? – is not addressed by the paper.

 

The first stage of this is administrative; but if R contests whether or not a marriage has broken down on the new s 1 fact of living apart then that fact raises a justiciable issue, which may have to be tried; though that could still (subject to appeal) be dealt with by an administrator (ie not a judge in a court). This needs consideration in any new legislation.

 

To suggest that behaviour such that a couple cannot live together (MCA 1973 s 1(2), and in Owens) or living apart for a period (one year was proposed by Family Law Act 1996 Pt 2) may be thought old-fashioned; but could that be a starting point for saying a marriage has irretrievably broken down?

 

The present law is the same as is proposed in the consultation. ‘Irretrievable breakdown’, in 1969, seemed very modern. It reflected the fact that breakdown is often six of one and half-a-dozen of the other; at least that what I was taught at Law School. The reformers, however, had to find a way to deal with cases where that was not enough (and to answer those who opposed divorce on demand): they came up with the DRA 1969 s 2(1) ‘facts’. In 2018 the Minister of Justice will have to find a basis for proof that a marriage has irretrievably broken down, just as the reformers did in 1969.

 

A ground for divorce, with proof of breakdown

 

Divorce could be permitted on both parties agreeing that their marriage had irretrievably broken down, and upon filing a suitable notice/application in a Register Office.

 

If parties do not agree, the marriage can be dissolved on proof by one that both had been living apart for one year or more. A clause proposing simple amendment to MCA 1973 s 1 is set out at the beginning of this article (drafted originally just after Owens had been heard in the Court of Appeal). The passages underlined replace (ie amend) the present section 1. Irretrievable breakdown, and the ‘facts’ on which it is proved, go (in that respect, not unlike the government’s proposals).

 

Two facts on which irretrievable break down is based emerge from this:

 

  • Either parties can together consent to a dissolution; or
  • They can ask for a divorce, without consent of the other, after a year of living apart for a year.

 

I hope this would provide a simple means, without the need to allege fault, for parties to dissolve a dead marriage; and then to look forward to their respective futures, not back in prolonged litigation to what went wrong with their marriage.

 

For now an amendment to MCA 1973 s 1 is as in the draft clause at the beginning of this response: the facts on which you prove divorce are (1) consent (ie immediate divorce on joint demand) or (2) living apart for a year. If it was (2), R could only argue that living apart had not started when P said; and, failing that, divorce would follow after the one year period.

 

Whether this meets the welfare need of children – so far as this is necessary outside the mostly excellent Children Act 1989 and which Lord McKay’s convoluted 1996 Act was hoped to do – is another question. The paper does not in any real way address the welfare of children. Does it need to?

Public hearings of family proceedings appeals

20160924_142217Open court principle and family courts appeals

 

In family proceedings some appeals (according to the level of court decision-maker) go either to the Court of Appeal (under Civil Procedure Rules 1998 (CPR 1998) Pt 52) or to a High Court judge (mostly) in the Family Court (Family Procedure Rules 2010 (FPR 2010) Pt 30). The level of judge an appeal goes to depends on a ‘routes of appeal’ table (not always easy to understand) in the Practice Direction (PD30A) to FPR 2010 Pt 30.

 

Appeals in the Court of Appeal are generally in public, those in the Family Court have been treated as subject to the rule that family proceedings are in private (FPR 2010 r 27.10); but since the new appeals system was set up on 14 April 2018 there has been a sporadic debate amongst judges and family lawyers as to whether appeals in family courts should be heard in private or in public.

 

From 10 December 2018 the debate is not finally resolved; but at least it has been put beyond doubt that a FPR 2010 Pt 30 family proceedings appellate judge (who will normally be a High Court judge) can order that an appeal hearing, or part of it, is to be ‘in public’. A new FPR 2010 rule, r 30.12A  is added to FPR 2010 Pt 30. This new rule does not say whether in future open court principles are to be preferred; but it puts beyond doubt the appellate judge’s powers to consider appeals in open the court.

 

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 30.12A(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(c)) and to restrict publications of names of children parties and others. The rule does not say who asks for the hearing to be public; but the judge plainly has the power on his or her initiative to open an appeal hearing to the public.

 

Common law: hearings in private

 

Nothing is said in the new rule as to how the new public hearing powers are to be operated by the appeal judges. The general rule is that all hearings must be in open court. That is a very old common law principle (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417and eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618).

 

Beyond this, the common law sets out limited circumstances where the general open court rule can be overridden and a hearing be dealt with in private. These exceptions are fully summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3). Rule 39.2(3) is reproduced for certain family (ie divorce) proceedings in FPR 2010 r 7.16(3). Each of these three provisions reproduces the common law exceptions to the open justice principle (ie where cases should be heard in private); though they can most easily be seen in r 39.2 which – after recording that ‘the general rule is that a hearing is to be in public’ (r 39.2(1)) – then goes on to say where an civil case may be in private:

 

(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;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;… or

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

 

Of that list (a), (c) and (d) would have been recognised by the Law Lords in Scott; and with the First World War just over the horizon, they would have recognised (b) very soon.

 

Rule 39.2(3) (c) and (d) would cover most family hearings today. Children cases would remain in private, save perhaps were a public body was being criticised. Many family money cases might be private where publicity might damage confidentiality. Family proceedings appeal judges could deal with Pt 30 appeals, perhaps, with the r 39.2(3) list in mind, and as their starting point for a decision on whether to open up to the public their appeal court.