President of the Family Division: what now?

20170722_161644First ‘view’ of Sir Andrew McFarlane P

 

Sir Andrew McFarlane’s first ‘view’ as President of the Family Division adopts the same title as his predecessor, Sir James Munby. This view, published on 24 January 2019, concentrates on the pressures of the present children proceedings system. It stresses the need – in straightened times – for practitioners and courts sometimes to cut corners, such as for ‘some time-limits’ to be extended. There is nothing, say Sir Andrew, that he ‘as President, can do to relieve the current pressure’.

 

That last comment must be taken first. Sir Andrew is quite correct: he has no budget and limited official administrative powers. Most would say his legislative powers were limited too; though Sir James was a highly creative – and prolific – legislator. Alongside that, it must be said that, nearly 15 years after the Lord Chancellor ceased to be judge, politician and legislator (see Constitutional Reform Act 2005), it is remarkable that the office of President of the Family Division keeps as many contradictions without any funds to support it as did that of the Victorian (and earlier) Lord Chancellor.

 

The President is pre-eminently a judge; and in that capacity Sir Andrew as a family lawyer is peerless (I declare an interest: he and I are two of only three continuing commentators of the original group – the foot-soldiers – on the Family Court Practice) The President is a legislator: he chairs Family Procedure Rules Committee and, especially in Sir James’s case, drafts numerous practice ‘guidances’ which are treated as quasi-legislative or judicial (which comes to the same thing for this purpose). These guidances etc go through no democratic process (rules changes are ‘laid’ before Parliament). And the President has an executive role with his responsibilities of running the Family Division. Finally, in the interstices of his three powers Sir James incorporated politics, as witness his numerous ‘Views’, guidances and ‘non-judicial’ (as they are called: eg speeches to bodies such as Resolution and ALC) interventions.

 

It is a role impossible for one person effectively to fill. Even Sir James, I believe, spread himself too thin. And of course it is almost entirely autocratic, save where, for example, extra money is required or when Family Procedure Rules Committee is responsible for signing off rules.

 

President’s office: a constitutional anomaly

 

The President’s office – especially as developed by Sir James – is a profound constitutional anomaly. As Montesquieu pointed out the legislative, executive and judicial tasks should be separated. The then Labour government – with mixed results in personal terms (eg Grayling MP and Legal Aid Sentencing and Punishment of Offenders Act 2012) – understood this when it came to a Lord Chancellor. They cured the constitutional impropriety by separating the inherited roles of the Lord Chancellor.

 

He no longer sat as judge in the judicial body of the House of Lords, nor as a legislator in the legislative House of Lords. A ‘Lord Chancellor’ remained in the cabinet; and she or he is now very much a relatively junior cabinet party politician. The Lord Chancellor’s department has a relatively substantial budget and is a legislator. Thus the Lord Chancellor is part of the executive and a legislator. The office’s judicial role has completely disappeared; and only rarely nowadays is the Lord Chancellor even a lawyer.

 

The three separate powers remain vested in various ways in the President of the Family Division. But he has no budget, so critical to any political role. As far as I know spending money is not part of his job description: it is not his job (save as a concerned human being). But should it be. Should he have a budget and the job of spending it? To what extent should a judge – any judge – be drawn too far in to the arcane processes of computerisation of court processes; or have control of (say) budgets for payment for expert witness (now tightly controlled by the Legal Aid Agency in publically funded cases: a special concern of Sir Andrew); or should he dictate the placement of video facilities for individual court-rooms, or the way court staff do their job, efficiently or not. So much for his executive role.

 

Rules and direction of family courts practice

 

As to legislative: Family Procedure Rules Committee is responsible for the first line of delegated legislation (ie before practice directions and guidances), namely Family Procedure Rules 2010. Practice directions are down to the President, but have to be approved and are mostly tacked on the parts of FPR 2010. Practice guidance comes below that in the quasi-legislative jungle. And then there are emissions from various judges (mostly Mostyn J); which are not judicial – ie part of the ratio decidendi – but treated as more or less binding on family lawyers. Someone needs to control and co-ordinate all this. The President’s office seems the obvious place. Again he needs a full professional staff for this (all non-judicial and civil servant members of FPRC are volunteers, which is crazy).

 

And the politician: if the new President is going to work his political skills to the bone as did Sir James, Sir Andrew must – again – have a proper secretariat. And he must have a budget. For example, on expert’s fees which are such a feature of difficulty for children or other proceedings covered by legal aid. In that instance, why not use assessors to sit with the judge; and then take the expenditure out of the Legal Aid Agency restricted regulations? Costs of assessors like judges would come direct from the Lord Chancellor’s budget. (I will write to Williams J – his Expert’s Working Group – about that: to be published separately.)

 

How to turn concern for ‘wellness’ into reality

 

If Sir Andrew is to continue the political approach to the President’s I can only urge him not to spread himself too thinly, as I believe did Sir James. With the breadth of the roles imposed upon him a limit on the tasks, alongside his pre-eminent judicial role, must surely be his aim? If I may I shall set these out one or two options in a following post.

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Open justice and domestic abuse court hearings: now and under the bill

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A draft bill: domestic abuse hearings in 2019

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer) their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

Hybrid procedural court powers

 

The bill’s powers can be exercised across a range of types of proceedings, civil (ie including family) and criminal. As at present drawn cl 27 enables the court to make domestic abuse orders (as defined by the bill). Clause 27 includes the following:

 

27 Domestic abuse protection orders otherwise than on application

Family proceedings

(2) The High Court [ie the Family Division] or the family court may make a domestic abuse protection order against a person (“P”) in any family proceedings to which both P and the person for whose protection the order would be made are parties.

Criminal proceedings

(3) Where a person (“P”) has been convicted of an offence, the court dealing with P for that offence may (as well as sentencing P or dealing with P in any other way) make a domestic abuse protection order against P….

(5) A court by or before which a person is acquitted of an offence may make a domestic abuse protection order against the person.

(6) Where the Crown Court allows a person’s appeal against conviction, the Crown Court may make a domestic abuse protection order against the person.

Civil proceedings

(7) The county court may make a domestic abuse protection order against a person (“P”) in any relevant proceedings [as defined by the Secretary of State] to which both P and the person for whose protection the order would be made are parties.

 

Application of the open justice principle: criminal court and Family Law Act 1996

 

An immediate question which arises in relation to the bill is whether all proceedings which involve allegations of domestic abuse should be heard in open court, as they will be if based on a criminal charge; or will they, as in family proceedings, be heard in secret (see Clibbery v Allan (below))? The privacy of family courts hearings is defined by Family Procedure Rules 2010 (FPR 2010) rr 10.5 (for domestic violence proceedings) and 27.10 (for the vast majority of other family proceedings covered by FPR 2010. The term the rule-makers use is ‘private’

 

It will be assumed that this question arises – now – in parallel criminal and family proceedings on the same facts. The accused (AA) and the main witness for the prosecution in criminal proceedings are the same as the respondent and alleged victim (ie applicant) in the family proceedings. The facts are the same in each set of proceedings.

 

As the law now stands almost all family proceedings injunctions, for non-molestation and occupation (of the party’ and their children’s former home) orders are dealt with under Family Law Act 1996 (FLA 1996) Part 4. (FLA 1996 Part 4 cases count as proceedings under FPR 2010.) It is said by FPR 2010 r 27.10 that all such cases are to be heard in ‘private’.

 

By contrast criminal proceedings will be heard by magistrates or a jury in open court. The hearing in family proceedings – judging by the rules, is to be in secret (or ‘private’). That is said to be the law, now (see eg Transparency in the family courts by Doughty et al (2018)). At Transparency para 2.148 seems to accept without question what FPR 2010 rr 10.5 and 27.10 says, without any reflection on the powers (vires) of Family Procedure Rules Committee who made those rules.

 

The assumptions on which the Transparency book is based are unlikely to represent the law, despite what the rules say. Unless children are involved, there seems no logic in saying that in one court on the same facts a defendant should be tried in open court; but that in proceedings under family law rules any trial should be secret. Logic or not, the law also denies that domestic abuse proceedings should, as a default proposition, be heard in secret.

 

Open justice: a common law principle

 

What is to be heard in open court is defined by the common law, probably going back to medieval times, certainly to the period immediately after the Puritan Revolution. This is explained by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417. Secrecy – hearings in ‘chambers’ – was guaranteed then only for children proceedings, for hearings concerning ‘lunatics’ and where publicity of hearing might destroy the point of the trial (eg for patents). Scott was a family case; but one – nullity – where their Lordships seemed astonished that anyone could contemplate a hearing other than in public.

 

The common law can only be changed by a higher court decision, or by Act of Parliament. The open justice principle has been immune to date from statutory intervention.

 

However, things have moved on since Scott: national security and confidential information of a party has been added. The common law secrecy/privacy list is best summarised now by CPR 1998 r 39.2(3) which is as follows:

 

General rule – hearing to be in public

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

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

(b) it involves matters relating to national security;

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

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

(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;

(f) [not relevant]; or

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

 

This list is reproduced almost word-for-word in relation to open court divorce etc hearings (FPR 2010 r 7.16(3); so the FPR 2010 rule-makers are well aware of CPR 1998 r 39.2(3).

 

A court rule cannot create law

 

The next legal principle has been described as ‘trite’ law – ie obvious (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75 referring to British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628). It is that a rule cannot create or change the law (unless Parliament says). This was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 as follows:

 

[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].

 

Rules exist only to regulate the law, save where Parliament says a rule can change a law. FPR 2010 are made under powers given to Family Procedure Rules Committee under Courts Act 2003 ss 75-76; and I can see no power to create law there (only in one case to ‘modify’ rules of evidence).

 

So what is the position in law of hearings under FLA 1996 Part 4? As it happens a frequently cited case – Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 – relates entirely to the 1996 Act. It was decided after introduction of CPR 1998 (which does not apply directly to family proceedings: CPR 1998 r 2.1(2)) but before FPRC made FPR 2010. The case defines the common law (ie judge-made law) for family proceedings of this type.

 

Clibbery v Allan: open court and domestic abuse in 2019

 

Dame Elizabeth Butler-Sloss P said of the terms in issue in Clibbery:

 

[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.

 

Dame Elizabeth and Thorpe and Keene LJJ, held that FLA 1996 Part 4 hearings were to be held in ‘private’ (which they explained as open court, but with limited space for those attending court: see eg Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, CA); and that Ms Clibbery could not be prevented from handing over papers from the case to the press. That remains the law today; and it cannot be changed by FPRC and their FPR 2010.

 

What Dame Elizabeth held in Clibbery also explains by my use of the word ‘secret’ for private hearings. The rules say ‘private’. They mean, in terms of Clibbery ‘secret’; and that can only be changed by statute, or decision of a court higher than the Court of Appeal, namely the Supreme Court.

 

The bill is silent – so far – on the issue of open court injunction hearings (as far as I can see). Should it remain a matter for the common law, or should the authors of the bill be encouraged to be clear on the point? The open court principle is so much a creature of common law: I would leave it to the judges. And, till the bill is on the statute book, as I understand the law, FLA 1996 Pt 4 hearings should be in open court subject to any of the exceptions summarised by the list in CPR 1998 r 39.2(3).

A draft domestic abuse bill

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Domestic abuse and domestic violence in 2019

 

Domestic abuse is endemic in UK society. The law’s response, in general terms, has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (which is rarely used), uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order), and even prohibited steps orders in Children Act 1989 Part 2 proceedings. Each is governed by a different set of procedural rules. Different means of enforcement are employed according to the remedy and the order made by the court.

 

Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

 

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson [1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said: ‘I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnson remains important: it provides the continuing House of Lords definition of the stare decisis rule.)

 

A draft bill

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

 

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

This post will concentrate on the first and last of these and then look at what rights issues may be engaged.

 

Domestic abuse

 

At present the most extensive definition of ‘domestic abuse’ is in tucked away Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm. In LASPOA 2012 Sch 1 para 12(9) ‘domestic violence’ is defined as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

 

The bill sets out the modern, and more extensive than any before, definition of ‘domestic abuse’. Prominence for, and a definition of, ‘domestic abuse’ is welcome (as is a modernisation of Lord Scarman’s definition: in strict precedence terms Lord Scarman comes before a Practice Direction). Physical abuse and threatening behaviour are in the definition; and so – crucially, I suspect – is ‘controlling or coercive behaviour’. ‘Economic abuse’ and ‘emotional or other abuse’ (echoing Lord Scarman, perhaps) are important developments in statutory thinking.

 

I will not attempt, here, a thesis on the differences between each of the three definitions. The Lord Chancellor will need – surely? – to align the statutory LASPOA definition with the wider and more realistic definition in the bill. Once the bill reaches the statute book – if no General Election intervenes, as happened with the last more modest Tory Lord Chancellor bill in early 2017 – this comparative exercise will be needed to show how the law has moved on since 1976; and to define what the law means in 2019.

 

‘Protection for victims and witnesses is court’

 

Under the heading, ‘protection for victims’ etc Part 4 introduces a new Part 4B to Matrimonial and Family Proceedings Act 1984 (generally regarded as the statute which still is kicked about by amendment for many forms of family proceedings). But first: it is to be hoped that the bill will not reach the statute book with ‘victims’ still in the title (as above). They are ‘alleged victims’. Anecdotal evidence exists that parties to family proceedings (mostly women) are concocting their allegations to help them to obtain legal aid. The ‘alleged’ handle (‘complainant’ would be more neutral and economical of space) is perhaps more important than ever.

 

The scheme under Part 4 is derived from Youth Justice and Criminal Evidence Act 1999. Yes in criminal trials the protection for witnesses has a life of nearly 20 years. Part 4 proposes that where an alleged victim risks being abused all over again in court by being cross-examined by her alleged abuser, the court can appoint an advocate to cross-examine the alleged victim as ‘representative’ of the alleged abuser (proposed s 31V(5); and see YJCEA 1999 s 38(4)). The ‘representation’ point will need careful review: s 31V(7) goes on to say that the representative ‘is not responsible to the party’, as in YJCEA 1999; but what does that mean if the advocate is the alleged abuser’s ‘representative’?

 

And yes, for any lawyer reading this post: there is provision for payment for lawyers for doing the cross-examination job, set out in proposed s 31W; but the detail of what is paid and how by the Lord Chancellor will be needed.

Human Rights Act 1998 and family law in 2019

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Tories and European Convention 1950

 

Recent press comment has gone back to concerns about the Tories getting rid of Human Rights Act 1998 (if they ever find time with all their Brexit distractions): . What does this mean, in the context (mostly) of family law?

 

I would hate to see our Human Rights Act 1998 being repealed; but I do not wish to sound complacent. In many cases, repeal of the Act is little more than a cheap political gesture – ‘sound and fury signifying nothing’ (Macbeth); well, nothing very much. If the Tories repeal the Human Rights Act 1998 in its entirety, not an enormous amount would change in most cases where European Convention 1950 principles are cited.

 

Human rights law

 

English human rights law (which is a much wider subject than the 1998 Act) is permeated by three deep running seams:

 

  • (1) Human Rights Act 1998 itself
  • (2) European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘European Convention 1950’)
  • (3) Common law

 

If the Act goes, the vast majority of each of law represented by these seams will remain and will be treated as part of our common law. For a recent example, see discussion of the term ‘likely’ after American Cyanamid v Ethicon [1975] AC 396 and Human Rights Act 1998 s 12(3) on the question of interim (yes, Lord Hain, ‘interim) injunctions in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 (23 October 2018). An interim reporting restrictions injunction was granted to complainants to protect their identity in relation to confidentiality agreements which all concerned had signed in exchange for, in the case of the complainants, substantial damages.

 

European Convention 1950 is deep in the psyche of most judges and other practising lawyers. It will outlast even the most sustained assault by any politician. It was drafted by leading English common lawyers after the Second World War. It has had an ineradicable influence on our common law.

 

Privacy: a human rights law for all

 

The example which is always mentioned by lawyers as to the influence of European Convention 1950 jurisprudence is the modern law of privacy: see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 through Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 to the very recent Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J; mix in JK Rowling’s case for her son Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481 and you see how fundamental to our common law has been the influence of European Court of Human Rights law on our common law. That will not change; and it is likely that the developing tort of breach of privacy will survive any political attack on human rights.

 

But let it not be thought that this aspect of human rights law is just for ‘celebrities’ (whatever that word means). It is important for all of us. I act for a child who has just found out that her father has accessed, and has taken (without telling her), all her communications with solicitors who want to help her (‘hacked’ her computer?). He then produced the lot in court. That is a plain breach of respect for her private life by her father (European Convention 1950 Art 8); and it may deny her rights to a fair trial (Art 6: the emails contain material from solicitors instructed by her which are, on the face of it, covered by legal professional privilege).

 

Human rights and a ‘child’

 

A more public child rights case which shows the importance of balancing human rights principles is Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J. This shows a judge who combines massive legal knowledge with very human principles and European Convention 1950. He applied thee to Angela Roddy’s wish to publicise her story about her treatment and that of her adopted child.

 

In 1999, when 12 years old, Angela became pregnant. In December 2003, when judgement was given, she was 17. Munby J ranged widely in his review of the law on competence of children following Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 and of the rights of a ‘child’ of Angela’s ag; but also balancing the Convention of Angela against those of the media and of members of Angela’s own family, of her adopted child and of the child’s family. Judicial analysis like that will survive any assault on Human Rights Act 1998. With or without a clear statute on human rights, the common law will continue to recognise that child’s rights (which, in themselves, are recognised by United Nations Convention on the Rights of the Child 1989).

 

‘Ultimate balancing test’ and human rights

 

In a variety of contexts the Lord Steyn ‘ultimate balance’ test in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 will survive. He explained freedom of the press (Art 10) in a case which crosses over from criminal law (a mother as on trial for her assault on a small child), to children law (the mother’s anonymity was in issue before the House of Lords: should it be protected to protect her child? No said Lord Steyn); and affects media law and freedom of expression, open justice principles and so on.

 

Lord Steyn explained how a court should balance, one against the other, Convention Articles which conflict in a particular case:

 

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test….

 

The value for all of us – adviser and judge alike – is of a set of factors to bear in mind (such as Articles in European Convention 1950: Arts 6, 8 and 10 in the case of Re S). And with those factors in mind the value of Lord Steyn’s balancing test cannot be overstated.

 

Even if you the politicians – legislature and executive alike – repeal the Human Rights Act 1998 the influence of European Convention 1950 running deep through the English common law will not go away. It is likely to survive the life-time even of the youngest reader of this post; and probably as long as the common law (ie the English High Court judiciary) lives on….

Video hearings and family courts

20160419_174504A video hearing scheme

 

A number of strands of family law and modern court practice coalesce in the civil proceedings default judgment video-link set aside scheme (Civil Procedure Rules 1998 Practice Direction 51V – the video hearings pilot scheme .

 

Family lawyers: please do not stop reading…. There may be important points which emerge from this scheme which can affect witnesses and parties in family courts. Video hearings can be an important subject in a variety of family proceedings. Four examples amongst many follow:

 

  • For those concerned with transparency in family courts video hearings, if both (or more) parties are on video, then attendances at court (eg of legal bloggers and press) are like to be impossible; unless special arrangements are made as PD51V
  • Especially in domestic abuse cases video link evidence may be critical for the allegedly abused party.
  • For those – witnesses and parties – who cannot afford to travel to court, or are disabled or elderly, video link hearings will be essential. I am dealing with a pro bono unit case now where a wife of limited means is threatened with loss of her home because a Family Court district judge made an order, in her absence, that she must sell her it (yes, really). The judge made no enquiry as to how she could travel 100 miles (and more) to court. (Yes she has filed her own notice of appeal; but she remains intensely worried.)
  • In another case of mine a 13 year old was interviewed by the judge. This was done by judge alone, with only the child’s solicitor present: nothing unusual in that. If the child was OK with it, is there any reason why the parents could not have seen the meeting on video? Any appropriate comment could then be made by parents in the course of the hearing of either party’s applications.

 

In passing it may be noted: in a recent First-tier Tribunal (child support) case I act in, a tribunal judge automatically offered a mother who was distant from the hearing tribunal, that the hearing should be adjourned so she could attend by video-link – a solution which did not seem to occur to the district judge in the Family Court sitting at Bedford.

 

What is the scheme?

 

Writing in New Law Journal on 29 November 2018 my colleague Stephen Gold said of the scheme:

 

‘The plan for Gogglebox civil justice has not been derailed even by Brexit. Proof comes in the form of a 12-month video hearing pilot scheme which starts today under PD51V. It will operate out of Birmingham and Manchester only and be confined to applications to set aside default judgments where the parties have consented to the application proceeding by way of a video hearing. Make up will be supplied free of charge by HMCTS to the judge and parties but not legal representatives who are regarded as being overpaid. Only joking about the make-up. The rest is deadly serious.’

 

The pilot scheme is limited, for the present to setting aside judgments made in default judgment proceedings (CPR 1998 Pt 12: not a very wide span of proceedings). It is the conduct in court of any proceedings which is important.

 

Paras 1.3 and 1.4 put statutory flesh on Stephen Gold’s commentary. It sets out the important detail of how the scheme is intended to operate:

 

1.3 All parties or their legal representatives will attend the hearing of the application, using the video-link, from suitable IT equipment and will see and hear, and will be seen and heard by, each other and the judge determining the application.

1.4 Hearings will be held in public. Members of the public may access a hearing by attending the court in person and will see and hear the judge and the parties or their legal representatives on a screen in the court room.

 

So yes, the court provides what amounts to an open court hearing….

 

Video schemes: private family hearings and open justice

 

My worry is that HMCTS will be quick to say, if these schemes are extended to family courts: ah yes, but almost all family hearings are in private (FPR 2010 r 27.10). There is no need for the taxpayer to go to the expense sent out in para 1.4. True; save that legal bloggers (and occasional others) and certain journalists are entitled to be in court (FPR 2010 r 27.11(2). That right will go – or will be diluted – if video hearings are set up without the additional rights to open court hearing in para 1.4.

 

Video link hearings and taking of evidence are here to stay. Rightly (in my view: see eg my client who at present has lost her house) video assistance to courts will increase. As video assistance increases: do those of us concerned with family courts transparency need to keep a weather eye on developments elsewhere, eg in relation to PD51V?