Why not open court for all domestic abuse hearings
This post is written in the light of the recent JH v MF  EWHC 86 (Fam) (22 January 2020), Russell J (where the judge was highly critical of a family courts judge and his approach to lack of consent of a young mother to sexual intercourse in a domestic abuse trial). Others have written about various aspects of this case (eg Suesspiciousminds at ‘Bad feng shui and bad judgment’ https://suesspiciousminds.com/2020/01/22/bad-feng-shui-and-bad-judgment/ and Civil Litigation Brief at ‘A decision that was “unjust because of serious procedural irregularity and multiple errors of law”: when decisions are not based on the evidence’ https://www.civillitigationbrief.com/2020/01/22/a-decision-that-was-unjust-because-of-serious-procedural-irregularity-and-multiple-errors-of-law-when-decisions-are-not-based-on-the-evidence/. I intend to concentrate on open court – or ‘transparency’ – aspects of domestic abuse court hearings.
The question which arises from Judge Tolson’s behaviour relates directly to how domestic abuse cases are dealt with by all common law courts (not just family courts) in the future. The question becomes much more than one of ‘transparency’ (which in reality is a euphemism for how far secrecy is permitted in any court). For a variety of reasons (see also my https://dbfamilylaw.wordpress.com/2019/01/23/open-justice-and-domestic-abuse-court-hearings-now-and-under-the-bill/ ) it is important to be clear how abuse allegations are dealt with in the variety of courts which may be dealing with them.
We must now be asking of judges like Judge Tolson (who tried the JH v MF domestic abuse case at first instance) when they operate in secret: why we are surprised that some judges behave so badly; and, as in this case, why do they project an early 20th century – even 19th century – approach to rape and sexual offences? And – it must be added – Judge Tolson is not the first family judge I can point to who, over the past year, has taken judicial steps which are unlawful and who should properly be supervised by press and other lawyers if our family law system is to preserve any form of credibility.
And how many men (it will mostly be men) will go on acting again and again (with different partners) in a way which is abusive, if they know they will always be dealt with in secret by family courts?
Domestic abuse: which court, what procedure?
This leads to the question: how does our domestic abuse law and procedure apply on the same facts to three completely separate areas of law:
- A possible criminal trial prosecuted by the police (open court: jury in the crown court)
- Damages proceedings in the civil courts (open court)
- Domestic abuse proceedings in the family courts (secret)
It must be recalled that the third of these – the domestic abuse in the family courts – might also be tied up also with private court children proceedings (as was JH v MF). And I cannot see that our legislators have done anything to try to put this procedural jungle right in the two – so far abandoned – domestic abuse bills which Parliament have started on since early 2017. (When I was first in practice the only way to get a domestic abuse (as it then wasn’t called) injunction for an unmarried partner was on the tort of assault (ie (2) above); but have we really come that far in those 40+ years?)
In 2020 all civil courts, including family courts, are familiar with the concept of separate trial of one or more issues. Domestic abuse is a separate issue from (say) what is to happen to children. There is no reason to try issues of domestic abuse at the same time as dealing with the welfare of children. For example, though in JH v MF the issues of domestic abuse arose in the context of a father’s claim concerning his child, there is no reason why the judge should not have dealt with domestic abuse as a separate matter, set down for a separate hearing.
From there it would be a short step to say liability in tort ((2) above: the harassment or assault damages claim) should be put over to another day for damages to be decided in open court (save if children are directly involved), and based on the findings of the preliminary hearing.
How a criminal trial can be dealt with is more difficult since the procedures in criminal courts – all this has to be dealt with now under three separate sets of procedural rules – are so different from those in civil (and family, where different) courts. Most starkly, the standard of proof (considered for domestic abuse family proceedings by Russell J at -) between civil and criminal, is different. This must be the subject of a separate post.
But on a post for ‘Transparency Project’ the question arises: if the issue of domestic abuse is – as it must surely be – dealt with as an issue separate from other family matters (such as children), why cannot it be dealt with entirely as a discrete or separate trial.? That trial can be – must be, surely? – in open court, as with any criminal aspect of the case. There is no reason at common law (see eg Scott & Anor v Scott  UKHL 2,  AC 417) why it may not be. (It is accepted that in a family court the media could be present even though the hearing was in secret (Family Procedure Rules 2010 r 27.11(2)(f)); but that misses the point. It does not make the hearing public as understood by the common law and as happens in all other courts concerned on the facts alleged.)
Open court hearings
The main case – still frequently referred to – on open court hearings is a family case namely Scott (above). In that case, over 100 years ago, the House of Lords (judicial branch) said that all cases, except for a very narrow number of examples (including children cases) must be in open court. Why? Because it is important – and this is still the law today – that people be able to see and hear (if they wish) what is being done by judges in their name. This is so – subject to a few very narrow exceptions (which might include the vulnerability of a witness of party: though in open court their evidence could be by video-link) – even if a trial might cause embarrassment.
In Scott v Scott Lord Atkinson (one of the five judges) said:
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.
Scott was a case about nullity of marriage on grounds of non-consummation. It was up there in terms of embarrassment; but still, in 1913, it should be public (though would not be today). The point is, to balance any humiliation with the public good of trials being open. Open trial must normally take priority. And, given that on the same facts, a case will be heard in public if for damages and criminal, but in private if on the application of a complainant. Where is the logic of that?
And if Judge Tolson had not sat in secret, it is important to reflect that his decision might have been different (though publicity did not deter him from brushing off Mrs Owens’s complaints as to her husband’s alleged behaviour: Owens v Owens  UKSC 41,  AC 899,  2 FLR 1067 when it ended in the Supreme Court). An open court hearing might have encouraged him to ensure disposal in accordance with Lord Atkinson’s ‘pure, impartial, and efficient administration of justice’? Who knows?…
Now is the time, surely – especially with a domestic abuse bill somewhere in the offing – to challenge the question of where and how openly domestic abuse cases are to be tried?
23 January 2020