What does ‘irretrievable breakdown’ mean as a ground for divorce?

20160419_170156Irretrievable breakdown of marriage: the old and the new


In Matrimonial Causes Act 1973 (MCA 1973) ‘irretrievable breakdown’ of marriage is easy to deal with. Everyone – other than academic lawyers, perhaps – knew that what proved divorce was the ‘facts’ (MCA 1973 s 1(2)): adultery, unreasonable behaviour, desertion (two years) and living apart (two years with consent and five years, without). It is the term used as teh sole ground for divorce in the Lord Chancellor’s proposals for law reform in Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (considered also here).


Under the existing law, no one actually files an ‘irretrievable breakdown’ petition – obviously. Well no-one calls it that, anyway. You file an ‘adultery’ petition, a ‘two year consent’ petition and so on. As a matter of political fact the ‘irretrievable breakdown’ part of divorce (MCA 1973 s 1(1)) was a middle line between the reformers who promoted the Divorce Reform Act 1969 and the clerics (‘no man shall put asunder’). In law, irretrievable breakdown was the ground; but that ground did not exist alone. It had to be proved by one or more of the five facts. On its own it became more or less of no meaning or significance.


Now ‘irretrievable breakdown’ on its own is proposed by the Lord Chancellor as the ground for divorce; but unsupported by any facts as proof. Proof is only by a party (1) filing a divorce application; or (2) by both parties so filing an agreed application. The problem is that, in a vacuum, the word ‘irretrievable’ – especially when applied to breakdown of a relationship – has a distinctly heavy meaning. Stated bleakly and unsupported, ‘irretrievable’ – unsupported by qualifying facts – means final. Yet who can say their relationship is for ever at an end?


The end of a relationship; but ‘irretrievably broken down’?


A personal relationship may be at an end. It may, for now, appear even to have broken down. This need not mean the breakdown is ‘irretrievable’. Lots of parents and their children fall out; but their relationship is not irreparable. I may lose touch with a friend, especially when Christmas card contact is less common nowadays. Our relationship may be in abeyance for a few years, broken down or lapsed; but is it ‘irretrievable’? And who can say of a relationship now that it is ‘irretrievably broken down’? Put like that ‘irretrievable’ is a very sad – daunting even – word; and, logically, it is impossible to assert.


And yet, the Lord Chancellor proposes no hard-edged ‘fact’ to prove ‘irretrievable breakdown’ – for example, living apart for a period (perhaps six months or a year). A fact, which can be denied (‘we weren’t living apart all that time’) would have the same clear and provable effects as the present MCA 1973 s 1(2) ‘facts’. It would enable the highly subjective ‘irretrievable’ to be proved in the tiny minority of cases where the living apart was disputed.


Law reform on the back of a case as badly case managed as Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067 (Lord Wilson in Supreme Court explained how it should have been done) – and where there were no dependent children – is not a good basis for law reform. A judgemental ground with any scope for judging denied is not logically – or in law – a good way forward.


‘Irretrievable breakdown’ as a form of words was rarely – if ever – analysed under the existing legislation. If there is to be no basis for contesting divorce proceedings, as the Lord Chancellor proposes, that ‘irretrievable’ – unsupported by a fact to prove it – is likely to be open to challenge. And the way it was used in the 1969 Act (now MCA 1973 s 1(1)) must be fully understood by the divorce law reformers.


The prior ‘marriage’ must also be defined. It is the ‘marriage’ which is said to have broken down. On open ground – ie with no back up facts for proof – what does the Lord Chancellor mean by a marriage? That is for another day.

Divorce reform: Lord Chancellor’s response – first thoughts

20160419_170156Response to consultation


In the Lord Chancellor’s Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (‘the Response’) he sets out his concerns that the law be used to minimise ‘the potential for couples to entrench positions as against each other’ (p 3) and to reduce the damage for children involved. That said, mediation for families receives no serious consideration in the Response. Absence of support for mediation in relation to a document which deals with family breakdown is disappointing.


I entirely accept that fault should be eliminated from the divorce process. However to say that an assertion proves that assertion (of marriage breakdown, in this case), as does the Response, and to retain judges to adjudicate (but adjudicate on what?), with only infinitesimal right of challenge feels illogical.


That said, I accept that all that follows awaits legislation and detailed court rules. No draft bill accompanied the Response. How much of what is proposed will be in statute, and how much in rules (probably in Family Procedure Rules 2010 Pt 7) remains to be seen. Aspects of what the government propose appear still to be under review.


Two aspects of the proposed reforms will be considered here:


  • The ground for divorce
  • The ‘removal of the opportunity to contest’


Grounds for divorce


The central passage of the Response recommends that irretrievable breakdown should remain the sole ground for divorce, as now; but that this should be based on a ‘notification’ process. The court should remain involved; but the judge has no adjudicative capacity since no issue on which a judge is required arises (save on eg jurisdiction and validity). The response at p 26):


We propose that the legal process for ending a marriage or civil partnership should start with a statement that the marriage or civil partnership has irretrievably broken down. In the consultation paper we in places referred this as a “notification” process…. We are clear that the decision to grant a divorce remains a legal decision for the court to make.


The Response goes on to identify matters to be dealt with by the judge: ‘A divorce is a fundamental change of legal status that will alter people’s rights and responsibilities’. But to what extent, and on what evidence, will judges check up on these things? The Response particularly mentions:


  • Whether the court has the jurisdiction to grant a divorce,
  • Is there a legal marriage for it to dissolve?

‘These are important legal safeguards’. So they are, especially in a jurisdiction where the sole arbiter of marriage is a 70 year old consolation statute (Marriage Act 1949) which dates back to the eighteenth century. So says the Response:


Where these legal safeguards are met, we propose that a statement to the court from one party to a marriage that the marriage has irretrievably broken down should be sufficient on its own to satisfy the legal threshold for obtaining a divorce.


But has the Lord Chancellor thought about how these matters will be checked administratively? Will an applicant have to satisfy the court administration before filing a statement? And what of collusive statements (eg to evade immigration rules)? How will this be dealt with in a system which says any ‘opportunity to contest’ is removed?


Challenge to the divorce application


The default position of the Response is that any challenge to a ‘notification’ statement should be excluded (p 29):


The Government therefore continues to believe that the ability to contest a divorce on other bases, such as disagreement with the other party’s decision to divorce, does not serve the interests of either party.


The law remains as now on ‘void marriage’ and ‘non-marriage’. There must be potential at least to reply on that basis; but how will that be dealt with? To a degree this last point is answered by the Response (at p 29):


In all cases, a divorce application could still be challenged on the bases of jurisdiction, validity of the marriage, fraud or coercion and procedural compliance. The court’s power to refer matters to the Queen’s Proctor also strengthens this safeguard.


There remains something uncomfortable about a court being required by statute to accept a statement from one party, where the other’s right to reply is highly restricted. Some basis for irretrievability (say living apart for a period) would give it substance beyond what could sometimes be little more than one party’s whim.


If the court is to remain involved in this proposed dissolution process, then it must be recalled that two of the fundamental bases of natural justice are notice and hearing both sides (audi alterem partem). Notice will be established by rules as to service. A legal system which only enables a party to state facts – it is irretrievable breakdown because the applicant says so – makes the court just a registrar. To say that that highly subjective assertion has in addition to be proved by a simple fact, capable or verification or corroboration (and of being denied by a respondent in those rare cases where there was doubt as to the fact) – would surely be more fair?


If the court is to be a registrar of divorce only, let us say so. No doubt a computer can be harnessed appropriately. If a divorce issue arises, or (say) the Queen’s Proctor becomes involved, then access into the court system can be arranged.

Divorce reform, but no more…

20160419_170156Reform of ground for divorce: when there’s time…


The Lord Chancellor has produced a response – a press release promising reform of divorce law – following his consultation on divorce law reform last Autumn.


Proposals for changes to the divorce law (and parallel civil partnership law), we are told, will include:


  • retaining the irretrievable breakdown of a marriage as the sole ground for divorce
  • the requirement to provide a statement of irretrievable breakdown
  • retaining the two-stage (decree nisi and decree absolute0 process for final dissolution
  • possibility for a joint application for divorce, alongside retaining the option for one party to initiate the process
  • removing the ability to contest a divorce
  • introducing a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).


Detail is awaited, when the full scheme is announced. This will be, we are told, when the legislative timetable permits. First thoughts include:


  • You cannot prevent someone ‘contesting a divorce’: if one spouse or civil partnership is entitled to make an assertion to the court (ie irretrievable breakdown) the other must be entitled to disagree: ie a fair trial.
  • We do not know how irretrievable breakdown will be proved (NLJ proposed a new Matrimonial Causes Act 1973 s 1 (irretrievable breakdown) in October 2018.
  • The government has been panicked into divorce reform in the wake of the Owens case (Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067, which is a real example of poor cases making bad law: had her case been properly pleaded by her lawyers Mrs Owens could have got her divorce (see NLJ August 2018).


Marriage and cohabitation breakdown: much more is needed


That is not to say that divorce law does not need reform. It does. But so does so much more of family law on relationship breakdown, which reformers overlook in the rush to change the narrow area of divorce. And the Lord Chancellor thinks he is offering a palliative to cover a narrow area in need reform.


In the area of relationship breakdown at least the following needs urgently to be reformed:


  • Cohabitation law and financial support for ex-cohabitant (ie unmarried) partners
  • Mediation available on a basis supported by statutory funding (which is needed, also, to help children in the bitterness of relationship breakdown: one of the Lord Chancellor’s aims with his divorce legislation)
  • Rewriting of Marriage Act 1949 which seriously discriminates against many couples which are not married in a still Christian-based statutory framework.

Anonymity: private and public proceedings

20160419_174504Open justice principle


Anonymity in relation to court proceedings tends to go with privacy (or secrecy) in proceedings, notably in family proceedings. The default position in all proceedings remains open justice, and therefore that names can be publicised. This is the open justice principle whose rationale was clearly asserted (amongst many examples) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:


[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?… In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said… ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’


In civil proceedings generally (including all appeals to the Court of Appeal) the general rule is that hearings are in open court (common law (above); CPR 1998 r 39.2(1)). This rule applies to divorce proceedings (FPR 2010 r 7.16(1)), and may apply to certain other family proceedings if the judge prefers to rely on common law rather than to a rule which only partially states it (ie that all family proceedings should be in ‘private’: FPR 2010 r 29.10)).


If the court says so, a hearing may be in private. In effect CPR 1998 r 39.2(3) and FPR 2010 r 7.16(3) says the same thing namely, that a hearing may be in private if amongst other factors:


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

(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;… or

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


Anonymity and Civil Procedure Rules 1998


Thus in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (8 March 2019), Martin Spencer J a claimant who sought damages for psychiatric injury arising out of the stillbirth of her daughter was denied anonymity: none of the exceptions in CPR 1998 r 39.2(3) applied. Anyway, said the judge, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case.


By contrast, in XW v XH [2019] EWCA Civ 549 (2 April 2019), the Court of Appeal dealt with a financial relief appeal. The couple’s son had a life-threatening condition. At the conclusion of the trial below the judge had made a reporting restrictions order. He anonymised the names of various people and redacted part of his judgment, saying there was little if any public interest in knowing the family’s identity. The appeal court referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (where the wife’s application for anonymity in financial relief appeal proceedings failed) from which it extracted the following:


  • In a financial remedy appeal, a formal application must be made for restrictions or reporting and for anonymity;
  • only exceptionally would an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal: parties were not routinely entitled to anonymity and the preservation of confidentiality in their financial affairs
  • parties could not waive the rights of the public by consent: the decision was the court’s, having conducted the balancing exercise in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (and see R v Legal Aid Board exp Kaim Todner[1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J);
  • the Court of Appeal would pay close regard to any anonymity order made by the first instance judge, although such orders were not binding (eg because of the different starting points for the respective courts);
  • the interests of a child might render it necessary to restrict public reporting of certain information in financial relief cases, K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA Civ 550, Norman and Re S followed


Anonymity and divorce proceedings


On the assumption that anonymity is normally denied where a hearing is in open court, two recent divorce cases give pause for thought. Exceptionally for family proceedings, the same open court rules apply to divorce as to all civil proceedings. The foundation case for modern open court principles remains a nullity case – ie now Matrimonial Causes Act 1973 (MCA 1973: ie divorce) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where their lordships seemed astonished to think anyone could have thought the case should be heard in private. In AJ v DM [2019] EWHC 702 (Fam) (6 March 2019), Cohen J considered whether a wife’s divorce petition should be amended. There were other jurisdiction issues; but nothing in his judgement explains why the divorce aspect of the case – albeit that it might be said to be case management – should be anonymised as the rubric to the report says is the case.


M v P [2019] EWFC 14 (22 March 2019) was Sir James Munby’s marathon explanation (judgment post Presidential retirement) as to why a decree nisi based on a petition pleaded wrongly (couple married for less than 2 years at time of filing who claimed they had lived apart for two years, amended after decree to MCA 1973 s 1(2)(b) (behaviour)) was voidable. The court he said had power to find the decree absolute voidable – not void (ie in that cases, any remarriage would have been bigamous). The former President heard the case in open court. He allowed unrestricted reporting, but gave anonymity to the parties. At the end of the hearing he said that the reporting restrictions order should be continued indefinitely the parties full anonymity. He comes close to treating this as a matter of discretion (see [115]): ie for him to decide as he saw fit, not according to legal principle; and, for example he made no reference to the common law principles summarised in FPR 2010 r 7.16(3) (above).


Appeals: family proceedings


Many appeals in family proceedings are to the High Court. These may be in open court (FPR 2010 r 39.12A(2)(a) since December 2018); though the rule does not say in what circumstances. In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J created an unusual precedent (for commentary on the case see ‘Not a vacuum but a low pressure vessel’ (Seusspiciousminds) and ‘CS v SBH: a child’s competence to appoint her own lawyer’ (Transparency Project)). He was to have heard a child law appeal in open court; but because a solicitor who wished to appear as advocate to represent the child did not have higher rights, he decided to switch the appeal to be heard in chambers (see [22]).


No clear principle is yet laid down as to when an appeal under r 30.12A should not be in open court, which – after such cases as Norman v Norman (above) – might be thought to be the norm. But to diverge from principle because of the rights of audience accorded to a particular advocate may be thought original. It being a children case no question of anonymity was in issue.


FPR 2010 r 30.12A(4) suggests that a practice direction may deal with when a family hearing is to be in open court; but none has yet been made. The rule does not deal with anonymity, save – indirectly – in that secrecy of a hearing is likely to connote anonymity also.




Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).


Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.

Lego instructions and the views of a child: Part 2

20160419_173301Lego, the law and child representation: a pre-preliminary point


In Part 1 of this short series I referred to a skeleton argument I had filed in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019).  Williams J was dealing with an appeal by a child in the Family Division in which he held that a child’s appeal ‘is a continuation of the first instance proceedings’ (at [41]). I referred to a short extract from my skeleton argument which was deployed by another lawyer at the hearing of the case. I said, in Part 1, that that part of my skeleton argument dealt with two points: (1) the child’s views (United Nations Convention on the Rights of the Child 1989 Art 12); and (2) the lawfulness of the child’s solicitor’s appointment.


This post deals with the second point which the judge described as being like Lego bricks without a set of instructions. He refused to consider my arguments on the original appointment of the solicitor (see [20] below). That said, he specifically did not consider the argument and reject it. It remains open for another day.


In summary this aspect of my skeleton argument was summarised by the judge:


[20] … In the skeleton argument Mr Burrows argued that the original appointment of Ms Coyle was unlawful and should be declared to be unlawful pursuant to the Senior Courts Act 1981 section 30 (2) with the knock-on effect being that the order of HHJ Meston QC would fall to be set aside without further consideration. Given that there was no appeal in respect of that appointment and the July order and no reference had been made to the possibility of such an appeal in the directions hearing on 13 February 2019, I refused to permit Ms Hopkin to pursue that line of argument. If the appointment had been wrongly made the appointment pursuant to the court order would remain valid unless and until such time as the order was set aside on appeal (italics added).


Williams J concluded this paragraph by lamenting his lack of ‘instructions’ from the skeleton argument (his FE Smith moment: see Part 1). He said:


… Although the skeleton contained some relevant and useful material, overall I felt as if I had been presented with a box of Lego pieces but no instructions to construct the model. It was only by a process of trial and error that one was able to ascertain which pieces were relevant to the model and which were for something else entirely.


Williams J may be unfair to himself. The earlier part of the paragraph precisely summarises what I was trying to say – and much more economically; but I was saying on this hearing (and having regard to the best interests of CS) that it was open to him to review the appropriateness of the appointment. That said, I had to accept that the original appointment of Coyle should more aptly have been appealled against.


Appointment by children’s guardian


The point is academic, now; but on an academic basis only – not because it seeks to reargue a case already dealt with – I ask whether an appointment made in the circumstances (used as illustrative only) of this case is lawful? It occurred, as the judge explains, as follows:


[4] … Shortly after the mother issued her application for a variation of the ‘live with’ order in April 2018, a dispute arose over which solicitor should be appointed by the [children’s] guardian. On 11 May 2018, the child was taken by her maternal grandparents to see Barbara Hopkin a well-known child law solicitor. The consultation was apparently funded by the maternal grandparents. Ms Hopkin assessed her as being competent to instruct a solicitor and wrote to the court asking that she be appointed as the child’s solicitor albeit with a Guardian. The Guardian however appointed Ms Laura Coyle, another well-known child law solicitor, who the Guardian had instructed throughout the earlier proceedings. At a hearing on 3 July 2018 HHJ Meston QC refused Ms Hopkin’s application for Ms Coyle’s appointment to be revoked and for her to be instructed and confirmed the appointment of Ms Coyle….


The judge went on to explain that no appeal was made against that ‘decision’ then or subsequently:


[4] … Ms Hopkin candidly accepts that she indicated to the child and to the maternal grandfather she thought that appealing against the decision was unnecessary [para 9 of her statement]. Thus any application for an extension of time to appeal that order (had such an appeal been lodged) would probably have been doomed to fail having regard to the criteria applicable to relief from sanctions under FPR 4.6….

[6] … Since 3 July 2018 the child has been a party to the proceedings with a Guardian appointed for her pursuant to FPR 16.4 who has appointed a solicitor Ms Coyle. The child’s wishes were to live with her mother. Ms Coyle met the child separately from the Guardian on 16 October 2018 specifically to assess her competency [and] concluded that the child was not competent to instruct her.


There was no question of appeal by the time I became involved (after the final child arrangements order hearing in early November 2018). However it seemed to me when I prepared my skeleton argument that if the appointment of Laura Coyle was unlawful, then it should be set aside.


Responsibilities of a children’s guardian


This is an absurdly complex (‘of complexity’ was the word chosen by Black LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027) area of law: that is, the law and practice of who reports upon and who represents a child in Children Act 1989 Part 2 (‘private law’) proceedings.


A reporting officer reports under CA 1989 s 7. If a child is ‘joined’ in proceedings – which is dictated by FPR 2010 PD16A para 7.1 which requires an issue of ‘significant difficulty” – then a children’s guardian (not the same in law as a reporting officer, though in practice what is the difference?) is appointed. Both reporting officers and children’s guardian are ‘officers of the service’ (ie Cafcass officers); or generally so. (Even this is foggy in law: a children’s guardian could be a private individual (PD16A par 7.7)). The children’s guardian, if a Cafcass officer is responsible for reporting to the court.


The role of Cafcass as a whole is defined by Criminal Justice and Court Services Act 2000 s 12 in relation to the ‘welfare of children’:


12 Principal functions of the Service

(1)In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to—

(a)safeguard and promote the welfare of the children,

(b)give advice to any court about any application made to it in such proceedings,

(c)make provision for the children to be represented in such proceedings,

(d)provide information, advice and other support for the children and their families.


The nearest this comes to the children’s guardian appointing a solicitor is s 12(1)(c) – ie to ‘make provision for…’ representation. I argued in my skeleton argument in CS means, in administrative law terms – and all this turns on administrative law issues – to make ‘financial provision’ for.


It does not mean, as did the children’s guardian here, to appoint a lawyer for the child. That is not her job, in law. She has no power, where the child has already appointed a solicitor who considered her to be of ‘sufficient understanding’ – as CS had done here – to go behind that unless, on application, the court so ordered (Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, sub nom Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, CA).


Who tests the child’s understanding


The judge disagreed with that last point (para [39]): ‘… it is ultimately for me to decide whether the child has understanding or sufficient understanding to conduct the proceedings without a Guardian.’ Williams J did not consider the Re CT point (as I see it): that he only had power to determine the issue of who was to represent the child on ‘challenge’ by someone in the proceedings, as Waite LJ saw it (at [1993] 3 WLR 602, 614):


I would hope and expect that instances where a challenge is directed to a solicitor’s view of his minor client’s ability to instruct him will be rare, and that cases where the court felt bound to question such ability of its own motion would be rarer still. If and when such instances do arise, I would expect them to be resolved by a swift, pragmatic inquiry conducted in a manner which involved the minimum delay and the least possible distress to the child concerned. It would be very unsatisfactory if such issues themselves became the subject of detailed medical or other professional investigation….


The appointment of a solicitor by a children’s guardian and what Criminal Justice and Courts Act 2015 s 12(1)(c) means is still at large, in terms of what s 12(1)(c) means. The question is open.


Taking account of the child’s ‘views’ should not have been open to contrary argument. That CS’s views should have been considered on an appeal such as this, should surely have been beyond question? If the child’s views had been considered, this would have given rise to a third issue not properly considered in CS (though plainly implied by it): who tells the child how to sack her solicitor. That, too, must await another day….

Lego instructions and the views of a child: Part 1

20160419_170156CS v SBH: a solicitor’s role


In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J was dealing with an appeal by a child in the Family Division in which he held that the child’s appeal ‘is a continuation of the first instance proceedings’ (at [41]). It was not therefore open to her to instruct solicitors afresh where she wanted to proceed without the solicitors she had in the court below. This post deals with the ‘views’ of a child in a case like this; and Part 2 with a point on appointment of a solicitor which puzzled Williams J. (The  facts of the case are referred to by Williams J at [4]-[6], more fully set out in Part 2.)


Finally, and dependant on the permission of HHJ Meston QC (who dealt with the mother’s original unsuccessful child arrangements order application) Part 3 may deal with unanswered questions implied by the judgment, but not dealt with. Namely what documents were CS’s chosen appeal lawyers permitted to see and to see CS themselves? Though the judge read the documents, and made his decision on the basis – he said – that CS’s appeal lawyers had not been able properly to assess her age and understanding, he did not deal with these prior applications, either expressly or by implication. Judge Meston QC has been asked to give permission for these facts and his orders, in the proceedings below, on which they are based to be reported.


Blog comments to date….


Paul Magrath, for Transparency Project, commented on the case in ‘CS v SBH: a child’s competence to appoint her own lawyer’. He had attended court as a ‘legal blogger’. He was tentative about mentioning my involvement in the case. ‘Suesspiciousminds’ described the case as

‘the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point’. He went on (I record gratefully): ‘[the case] involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.’


How much I could say about the case – if I decided to do so – lead me, before commenting, to examine Administration of Justice Act 1960 s 12(1) as carefully as I could; and – inconclusively – to come up with ‘Contempt of court: “publication” and children proceedings’ . All I can say is that for the first time in over 40 years of practice I was confronted with a real issue under s 12(1). My examination of it, as FE Smith did not say, made me better informed, but not a great deal the wiser in terms of advising myself.


I want here to deal with two points arising from CS (and in so doing I sincerely hope I am within s 12(1) limits):


  • The extent if at all that Williams J in CS took account of United Nations Convention on the Rights of the Child 1989 Art 24 and the ‘views’ of the child (Part 1); and
  • The administrative law point – described by the judge as a ‘pre-preliminary’ issue (Part 2).


Introduction and an outline of the case


As Suesspiciousminds says, the working out of Williams J’s judgement is ‘complicated’; but its ratio (ie what the case decided) is simple. It is that appeal proceedings are not separate from the proceedings and decision appealed against. Therefore CS was not entitled to instruct a solicitor afresh on the appeal (unless, perhaps, she was assessed afresh on the appeal: the ‘unanswered’ question):


[82] The effect of my decision is that the child cannot pursue this appeal without a children’s Guardian. The Guardian remains appointed for the child. Given my conclusions, Ms Coyle is not obliged to conduct the proceedings in accordance with instructions received from the child (FPR 16.29(2)) but rather in accordance with instructions received from the Guardian (FPR 16.291)).


The rest of most of the 31 page (81 paragraphs) judgment is obiter. It makes interesting reading – complex even. It revives a 1993 case of mine – important I believe for children and the lawyers they want to represent them, namely Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA. (I did not, as Williams J kindly says (at [37]) ‘appear’ in the case; though I represented Claire, and appeared before Thorpe LJ below. In the Court of Appeal she was represented by Judith Parker QC and Roderic Wood QC. CS deserves to be revisited for Williams J’s obiter remarks on Re CT; but that is for another day.)


Representation of CS; a skeleton argument


As introduction to CS, it is enough to say that I was the lawyer – as [1] of CS makes clear – who represented the child on an appeal to the High Court. As agent for Barbara Hopkin, solicitor (who represented CS at the hearing before Williams J), I filed her notice of appeal. Her court-appointed lawyer, Laura Coyle, had not pursued an appeal from the child arrangements order below (nor, as far as I know, advised on the issue of appeal).


My skeleton argument was anonymised so it could be handed to any press at the hearing. It starts:


Background – the issue before the court


1  The issue which arises for determination is set out in the order of Williams J of 13 February 2019 as follows:


UPON the judge listing a hearing to make directions upon the preliminary issue as to Mr Burrows’s locus to pursue this application for permission to appeal on behalf of the child [CS] having regard to whether [CS] may instruct a solicitor within this appeal pursuant to Family Procedure Rules 2010 [FPR 2010] r 16.6(3)(b) or r 16.6(5) (‘the preliminary issue’)

[2]  Prior to this is the question of whether the appointment of Laura Coyle (LC) by a Cafcass officer as solicitor for [CS] is lawful:

  • In the proceedings under appeal; and
  • On [CS]’s proposed appeal?….

[3] …


[4] It will be argued here that: LC’s appointment was not lawful; and that the decision and order below should therefore be set aside. This appeal then becomes redundant.


[CS]’s ‘views’


[5] Central to any question relating to [CS] is United Nations Convention on the Rights of the Child 1989 Art 12, by which this court is bound and which provides:


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.


This extract from my skeleton arguments sets out the two points I will deal with in this and the followings posts: the child’s views (Part 1); and the lawfulness of Coyle’s appointment (Part2). I assumed the first – application of Art 12 – was a given in family proceedings nowadays. I had thought I explained sufficiently the lawfulness point – to be dealt with in Part 2 – in my skeleton argument. However, not satisfied only with finding it like Lego bricks without a set of instructions, the judge just refused to deal with it (per [20] below) at all.


United Nations Convention on the Rights of the Child 1989 Art 12


So far as I know – and I have read many of the more recent papers in CS’s case – in none of the judgements in the period of the mother’s child arrangements order application (case management or final decisions: May 2018 to February 2019) has Art 12(1) been raised. In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (where, as Williams QC (the CS judge) represented the unsuccessful father), drawing on Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961, the Court of Appeal (per Ryder LJ) said:


[41] A principle that is of ‘universal application’ consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child is on its face a fundamental principle. I regard this court as bound by their Lordship’s decision In re D…. In every case, the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, “whether and if so how is the child to be heard”.


The child’s ‘views’ in CS were treated as being frozen at between four (final hearing before HHJ Meston QC: November 2018) and nine (first case management hearing before Meston QC: May 2018) months before Williams J’s decision. No review or attempt to elicit CS’s views was attempted by Williams J (D was aged seven: CS was nearly 13). All that I can say – I was not in court – is that a search of the judge’s judgment for ‘UN Convention’ or ‘United Nations’ etc gives one reference to ‘UN Convention Art 3’, and one – in a judgment of Thorpe J in Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 (cited in my skeleton argument, of course) – to Art 12. Neither reference, plainly, were part of the judge’s reasoning for his decision; and the Thorpe LJ reference part of the obiter discussion. Neither, in particular, refer to the ‘views’ of CS, the near-13 year old child in the case.


The decision was made against a back-ground of Williams J’s view that:


[78] … There is however an immediate and obvious difference between them…. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.


This finding overlooked the point on which it should have been contingent: namely the unanswered question of the extent of documents seen by the judge (but not by Barbara Hopkin); and the fact that the court would not permit her to be seen personally by Hopkin.


Lego, a learned judge and a FE Smith moment


There is no direct reference to ‘Art 12’; but search the judgment for the term ‘Lego’ and there it is. Williams J’s FE Smith moment comes in para [20] (Thus, at the lunch adjournment in a case, having heard FE Smith’s submissions, a judge regretted – he said – that ‘he was none the wiser’, as a result. ‘No, but much better informed, my Lord’ was the reply). Lego and Williams J’s FE Smith moment will be dealt with in Part 2….