Can court rules change substantive law?
What substantive law (ie common law and statute law) defines the English and Welsh system of open justice? And can any family courts court rule change open justice principles in relation to family proceedings?
The common law (judge-made law) can only be changed (1) where a statute does so; (2) where a statute says delegated legislation (such as Family Procedure Rules 2010 (FPR 2010)) can do so; or (3) a judge (having full regard to the rules of precedent) reframes the terms of the common law. For a rule to change (as opposed to summarise: see Civil Procedure Rules 1998 (CPR 1998) r 39.2 (below)) the law there must be statute law which permits it (as in the limited circumstances defined by Courts Act 2003 ss 75-76 for FPR 2010 (see later)).
Put another way: it is essential that substantive law is clear first by anyone who wants to define the law; and that that law and its effectiveness is not muddled up with what delegated legislation says and if it conflict (eg in this case, with what is said in court rules). For substantive law, much of what follows is common law. Because it must be deduced from case law, that is not always easy; but in most respects the common law open justice principle is relatively easy to deduce from such cases as Scott & Anor v Scott  UKHL 2,  AC 417 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (considered further below).
The question which started this this article was: should domestic abuse hearings (mostly under Family Law Act 1996 Part 4 and 4A) be in open court. On common law principles, and subject to any limitations summarised in the law as defined by CPR 1998 r 39.2(3), eg in relation to rights of children), hearings under Part 4. Many other domestic abuse hearings must surely be in open court. The same charges against an alleged abuser would be heard in open court in criminal proceedings (see my ‘Non-molestation and open court hearings’ (27 December 2017 ). So, subject to common law privacy exceptions, can closed hearings of domestic abuse cases be justified by the family proceedings courts administration?
‘Transparency’ and the family courts
Hearings of domestic abuse proceedings goes to the question of what family lawyers euphemistically call ‘transparency’ (as open court principles in the family courts were euphemistically described by the then President of the Family Division, Sir James Munby P, in Practice Guidance 16 January 2014: Transparency in the Family Courts: Publication of Judgments  1 FLR 733). ‘Transparency’ in family hearing relates to its opposite, namely privacy of hearings for family cases.
This series will look only at hearings and publication of court documents using FLA 1996 Pt as is underlay. The series will look at the following topics:
- What does the law say about open court principles and about the powers of the court to permit publicity for court material?
- To what extent is what is said about open justice in FPR 2010 within the powers of the rule-makers (Family Procedure Rules Committee; FPRC)?
- If an individual (a journalist (say), or anyone who might want to go into court: if it’s open court they don’t have to justify themselves) believes they have been wrongly excluded from court or refused permission to publish information, what can they do, and in which court.
(1) OPEN JUSTICE AND THE LAW
Open justice: a common law principle
Substantive law is made up of common law and statute law. In Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 Lady Hale in the Supreme Court summarised the extent to which rules (and this includes FPR 2010) could alter substantive law:
 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)  Ch 1210.
A similar point was made in the Court of Appeal in by Buxton LJ in Jaffray v The Society of Lloyds  EWCA Civ 586,  1 WLR 75. A barrister had tried to urge that court to say a new rule ‘prevailed over any previous jurisprudence that might be argued to limit the jurisdiction’ under that rule. The new rule should be ‘reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind’ as Buxton LJ described the submission. He replied:
 That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique  AC 602 at p 628….
The concept of open justice is a common law principle. This was asserted (in words since approved by the Supreme Court in eg A v British Broadcasting Corporation  UKSC 25,  1 AC 558 and Kennedy v The Charity Commission  UKSC 20,  1 AC 455) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (above):
 The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.
Open justice, privacy and statute law
The leading case still cited almost daily in all courts (criminal and civil, family and administrative tribunals) is still Scott & Anor v Scott (above) where (at 445) Earl Loreburn said:
The inveterate rule is that justice shall be administered in open Court. I do not speak of the parental jurisdiction regarding lunatics or wards of Court,… I speak of the trial of actions including petitions for divorce or nullity in the High Court. To this rule of publicity there are exceptions, and we must see whether any principle can be deduced from the cases in which the exception has been allowed. It has been held that when the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed.
This approach – with additions, such as for questions of national security and for confidential information generally – defines the law still more than 100 years later. And, it must be recalled, Scott was a family case, decided at a time when no distinction between rules for civil proceedings and for family law (proceedings now covered by FPR 2010) would have been recognised by judges.
Alongside all this FPR 2010 r 27.10 says boldly:
27.10 Hearings in private
(1) Proceedings to which these rules apply will be held in private, except –
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise.
(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.
And save for Holman J (see eg Fields v Fields  EWHC 1670 (Fam),  1 FLR 1186) most family lawyers go along with what the rule says. The y do not obviously reflect on the extent to which the rule may conflict with the law. But to what extent is the rule itself not lawful?
Law summarised by Civil Procedure Rules 1998: open justice
In 2019 the law in relation to exceptions to the open justice principle can best be seen summarised in CPR 1998 r 39.2(3) (which is in almost identical terms to FPR 2010 r 7.16(3) for open court defended divorces). Under the heading ‘General rule – hearing to be in public’, r 39.2(1) states the common law default position: ‘(1) The general rule is that a hearing is to be in public’; and ‘hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3)’.
If the court is contemplating ordering a private hearing it ‘must consider any duty to protect or have regard to a right to freedom of expression which may be affected’ (r 39.2(2); a factor protected by press rights under Human Rights Act 1998 s 12).
CPR 1998 r 39.2 then continues to list the factors which may permit the court to order that a hearing be in private (parts of which are clearly predicted in Scott v Scott (above)):
(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(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 for any other reason considers this to be necessary to secure the proper administration of justice.
What bits of this list would family lawyers object to as a definition for when family hearings should be in private (with a modernised Administration of Justice Act 1960 s 12(1) to back any breaches of privacy).
CPR 1998 r 39.2(3) and Clibbery v Allan
The content of the list in r 39.3(3) sets out the common law (as do many of the provisions on disclosure in CPR 1998 Part 31, which must be imported into family proceedings given the poverty of rule-making in the parallel FPR 2010 Part 21). I would expect any family judge to follow it if application were made (eg in a committal application or a domestic abuse hearing). The extent of the rule (in contrast to Administration of Justice Act 1960 s 12(1)) was considered by Dame Elizabeth Butler-Sloss P in Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565 at eg - and .
That case deals with the common law on open court principles and release of documents in relation to Family Law Act 1996 Part 4 (FLA 1996 Pt 4; UK’s present domestic abuse legislation). It explains the common law and – in relation to publicity – it conflicts with Mostyn J’s assertion of what r 29.12 was said to mean. It is very much still good law as Mostyn J himself makes clear (see his citations at -) in Appleton v Gallagher (to be considered in the next part).
Clibbery v Allan concerned proceedings where a circuit judge had refused to make an occupation order injunction (under FLA 1996 Pt 4) on Ms Clibbery’s application. After the hearing she passed some of the documents in the case to the Daily Mail. Mr Allan asked for a restraint injunction to prevent such publication by Ms Clibbery or by the newspaper. An interim injunction was granted. On its return it was refused by Munby J on the return date (Clibbery v Allan  2 FLR 819). The Court of Appeal decision turned on the extent to which proceedings such as these were private, and to what extent confidentiality of documents therefore applied.
The issue for the Court of Appeal was: were the proceedings under Family Law Act 1996 Pt 4 in ‘private’ (as they defined it: and see Hodgson v Imperial Tobacco Ltd  1 WLR 1056); and if they were, could there be subsequent publication or other release of documents, as Ms Clibbery had done. Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keene LJJ agreed) held that publication by Ms Clibbery in this way was lawful. Mr Allan’s interim injunction was discharged.
These findings conflict with the restrictions on the open court principle and publicity of family proceedings documents set out in FPR 2010 rr 27.10 and 29.12; and it represents the common law in relation to LFA 1996 Pt 4 hearings, not what is said in the rules, so far as they do conflict.
The common law and family proceedings
For now it will be assumed that CPR 1998 r 39.2(3) summarises the circumstances in which any civil proceedings (including family proceedings) may, at common law, may be considered for hearing in private (ie in secret and to the exclusion of the public).
Using the list in r 39.2, to what extent is what is said about open justice in FPR 2010 within the powers of FPRC. And how does an individual enforce any right they have to be in court? These topics will be dealt with in the following parts of this series.