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.

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