Reply for the Transparency Review of the Family Division President

This is my reply, submitted yesterday, to The Transparency Review – The President of the Family Division’s Call for Evidence. On Word Press the original paragraph numbers reappear as blobs. I am sorry.

 

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FOREWORD

 

Maesteg, Mrs Lewis and open court in Bridgend County Court

 

On 28 March 1934 in the Western Mail reported that at Bridgend County Court Keziah Lewis resisted a claim by her then husband – her second – against properties she owned in Maesteg.[1] The special interest of this case is that it was fully reported by the local paper: no secrecy or private hearing as with family cases in the later 20th and 21st century, it seems. Even settlement terms were published in full. That is surely how the House of Lords would have expected Mrs Lewis’s case to be (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). How and why have things changed since 1913, and sometime between 1934 and now?

 

But first, to finish Mrs Lewis’s story. The circuit judge, Rowland Rowlands ‘settled’ the case (said the Western Mail) by proposing that Mrs Lewis pay £310 to Mr Lewis for his claim, with no order as to costs; and that was after, as he had told the court, Mr Lewis had handed over ‘every penny of his wages to his wife’. She agreed and the judge adjourned the case for a month so she could pay the money into court: a sort of early example of a Tomlin order, a form of financial dispute resolution, perhaps.

 

However, the case is of interest as an example – without further comment, then, it seems – of a family law application being dealt with in open court, where now it would generally be in private, if a rule change is regarded as law (I argue below that it is not law). It must be assumed that Mr Lewis’s application was dealt with under Married Women’s Property Act 1882 s 17 which was the standard basis at the time for the court to adjudicate on interests in matrimonial property; and as need be a parallel claim would then be made under Law of Property Act 1925 s 30 for sale if the court adjudged a spouse to have a share. Section 17 survives – though it is rarely used, since 1970 saw the introduction of a regime which enabled – and still enables – the courts to adjust property as between spouses.

 

One of the remarkable facts is that if you make your claim under section 17, or – as is much more likely under matrimonial property legislation (now Matrimonial Causes Act 1973 Pt 2) – the modern (modern?) rules say your case must be in private; but if you are not married but want to sell your family property – jointly owned, perhaps, with your cohabitant – you case will be heard generally in open court. Such is the logic of English and Welsh procedural law in 2020. Yet this state of affairs – probably unlawful, as explained later – would not have been recognised in 1913, the year of Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417. How has substantive law in England (surely the Welsh would not, left to themselves, have done this to the law?) got to this absurd position?

 

Privacy and domestic courts: Magistrates’ Courts Act 1980 s 69

 

At the time the Western Mail went to court concerning Mr and Mrs Lewis, the likelihood is that most family cases (not hers, of course) were in the domestic courts, as they were called till the 1980s (ie the magistrates’ courts). Later these courts were known as family proceedings courts from 1991 as the Children Act 1989 came in; and as their staple then changed from money as it had been till the 1970s to care cases (Children Act 1989 Pts 4 and 5). I can remember countless variation of maintenance hearings as inflation raged in the 1970s (all on legal aid) and the courts could not arrogate to themselves the power to index-link orders.

 

Most of my family law practice for the first five or six years of my career (as a solicitor from 1973) was in domestic courts. We didn’t give it much thought then; but as a matter of law the press and lawyers (like me) could attend any court hearing, as we could till 2014 (Magistrates’ Courts Act 1980 s 69). Courts were open to us (but not to the bar, who are not officers of the court). All the fuss in 2009 over amending the rules to let in journalists etc to family courts did not apply to family proceedings courts. I wonder if anyone told the then President of the Family Division Sir Mark Potter (and the liberal MP who agitated over secret family courts) of s 69 when Sir Mark introduced what is now FPR 2010 r 27.11(2)?

 

In what follows I urge the President to regard open court hearings as the correct end of the telescope; and to say that only those hearings which come within the scope of prohibitions in Scott and amplified by provisions such as CPR 1998 r 39.2(3) should be listed as in private. Beyond that it is not lawful to make family courts private.

 

And what is meant by ‘private’ and what privacy and secrecy (eg in relation to release of documents) must please be clearly defined.

 

David Burrows

7 May 2020

 

I       INTRODUCTION

 

1        FAMILY COURTS’ OPENNESS

 

 A Review and a call for evidence from the President

 

  • The question of whether a case is heard in open court is not an arid subject of interest only to a few judges and lawyers. The judiciary are already under attack politically from the present government. In my opinion that is unfair. Of more immediate concern to all of us – lawyer and layperson alike – is the way in which secret family courts operate.

 

  • The recent case of the long-standing family judge whose understanding of ‘rape’ and of the meaning of consent was long out-of-date. It may be a dramatic example; but there are many examples of poor practice by judges and magistrates relatively low on the judicial tree which some measure of scrutiny from outside would help to secure a measure of Bentham’s judgment while judging.

 

  • With these points amongst many I hope it will be accepted that for all courts their openness to scrutiny is very important. It will be argued here that secret hearings (to adopt the terminology of Dame Elizabeth Butler-Sloss P in Clibbery v Allan) must be justified on clear legal grounds; not just based – as now (FPR 2010 r 27.10) – on a basket rule which directs that all proceedings under one set of rules must be secret.

 

 

  • The invitation says that submissions on certain questions are likely to be of particular value, summarised in Ch 6.

 

Content of this reply to the Review

 

  • This paper will address the subjects raised by the President’s invitation as outlined by the Summary above. I will try to use the terminology defined by the common law, namely by Dame Elizabeth Butler-Sloss P in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565:

 

[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.

 

  • This is a more apt description to its subsequent misuse – certainly as defined by common law – in FPR 2010 r 27.10. ‘Private’, as Dame Elizabeth used the word, could be reserved for those cases where the media etc are allowed in (FPR 2010 r 27.11(2)) and where they are allowed sight of confidential – albeit redacted – documents. If no-one is allowed in – eg adoption proceedings and other proceedings in FPR 2010 r 27.11(1) – ‘secret’ or ‘confidential’ is more apt.

 

  • Secrecy will be rare nowadays if release of court material to media and others permitted to attend private hearings became available on terms akin to Cape Intermediate v Dring under a rule similar to CPR 1998 r 5.4C (not, as now, only in appeal cases).

 

Particular types of proceedings

 

  • The Table at the end of Ch 6 sets out the present position in law as I understand it in relation to the different types of proceedings.

 

  • The issue is the more pressing in relation to domestic abuse with the likely introduction of a domestic abuse bill into Parliament soon; and is made the more poignant by:

 

  • The comments on HHJ Tolson of Russell J in JH v MF [2020] EWHC 86 (Fam) (22 January 2020) in the woman’s appeal
  • Why Caroline Flack, the TV presenter, was enjoined not to see her ‘boy-friend’, yes, in criminal proceedings. This was surely a private (ie family law), matter, not one which involved the criminal jurisdiction magistrates?
  • Shortcomings in magistrates domestic abuse disposals in Sussex who are not applying Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm (though this is in a part of the rules which applies only to children, is not a rule, and must be impenetrable to most JJ).

 

  • If press were admitted to any of these types of case at least in theory there would be someone – per Jeremy Bentham and Lord Scarman in Harman – keeping an eye on things for us (at least in theory).

 

  • Before any review can be undertaken the law must be defined and, so far as the rules diverge, their divergence – and therefore unlawfulness – must be pointed out and understood. Chapter 2 of this reply is derived mostly from a chapter (so far only loosely edited) in my forthcoming book Open Justice…. (Law Society). I argue that as it stands the present FPR 2010 r 27.10 is ultra vires the rule-makers. It does not comply with the common law. However, I know of no-one who has challenged the rule either by judicial review or on a Boddington basis[2] (and see Ch 3).

 

‘Private’: no definition at law; or it is ignored where there is definition

 

  • However, the critical feature of all this is to define what is meant by ‘private’; and here the law cannot be said to be settled. Each of Administration of Justice Act 1960 (AJA 1960) s 12(1), CPR 1998 r 39.2 and FPR 2010 r 27.10 use ‘private’ without any real attempt to define it, save that r 27.10(2) says it means the public ‘have no right to be present’. Each of these provisions will be considered in Ch 3.

 

  • This subject is not assisted by the fact that family lawyers, especially those dealing with children cases, tend to use the word ‘private’ also when they mean proceedings between (mostly) parents over their children under CA 1989 Pt 2. For instance in a recent intended talk, published by Transparency Project Sir James Munby talked of the ‘Crisis in private law’[3] by which meant mostly Pt 2 proceedings (some judges are more punctilious (eg Cobb J) and speak of Pt 2 (for ‘private’ law cases) as distinct from Pt 4 (‘public’ or local authority CA 1989 proceedings).

 

 

4        A FAMILY RULES MENTALITY

 

Civil Proceedings rules for family proceedings

 

  • Out of the blue – I think – in 1998 the Civil Procedure Rules 1998 rule-makers decided to say that their rules should not apply to family proceedings (CPR 1998 r 2.1(2)); though this did not happen till April 2010. Even senior family judges with a wealth of leading counsel (of greater or lesser experience in family law) did not always realise what had happened and, as in JG v Lord Chancellor and ors [2014] EWCA Civ 656, [2014] 2 FLR 1218, shows they dealt with old rules cases unlawfully under the new rules. JG dealt with single joint expert evidence; but such evidence was not permitted under old law (see Rules of the Supreme Court 1965 Ord 38) still in force when the case started and the Legal Services Commission refused to pay.

 

  • The pre-2010 rules operated on the basis that civil proceedings rules – Rules of the Supreme Court 1965 and County Court Rules 1981 – applied unless Family Proceedings Rules 1991 and its predecessors said something different.

 

  • It is unclear to me why that cannot be the same now. Many aspects of civil proceedings law are taken in to family proceedings from CPR 1998 (Pt 52 and the costs rules are two examples); many are taken direct from CPR 1998 (such as FPR 2010 Pts 20, 22, 23, 24, 25, 33 and 37; but you must be careful to spot the deliberate divergences: all good for lawyers to inflate their bills). Some aspects have to be derived direct from CPR 1998 because FPR 2010 are silent (disclosure rules); and some race ahead (different rule for statements of truth on one hand) but a less caring regime for civil proceedings than in family or civil proceedings.

 

  • That boat has perhaps sailed irretrievably unless we were suddenly blessed with a steadfast and radical FPRC with time on its ill-resourced hands.

 

  • The reason for mentioning it is to say – again – that open justice is defined by the common law, just as are all civil proceedings. Procedurally there can be no logic in finding a division in different types of civil proceedings procedural law in relation to such a fundamental right as open justice.

 

Inquisitorial and adversarial

 

  • Some judges occasionally suggest that family proceedings law has ‘elements of inquisitorial’ in them (eg Thorpe LJ in Clibbery v Allan). Others, perhaps more detached observers, see the ‘inquisitorial’ label as inappropriate (eg Lord Nicholls in Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 (‘beguiling’); Lord Neuberger MR in Edgerton v Edgerton and Shaikh [2012] EWCA Civ 181, [2012] 2 FLR 273).

 

  • The fact is the common law has not defined what is meant by this term. Beyond case management powers there is nothing in the rules (Lord Woolf who designed CPR 1998 – it could be said – was a great proponent of the adversarial system; so his case management scheme is unlikely to have been intended to promote its opposite).

 

  • Were an inquisitorial system to be introduced it would make judges have to work harder – especially in financial relief cases where parties are unrepresented. Surely it would be good to have observers into court (for example, and if they would come) to see if judges ever do what they are supposed to do under the rules: eg in financial relief cases, to use the first directions appointment (r 9.15) to define the issues and save costs (including by reducing scope for inquiry by both parties).

 

  • I have always said that if I were a judge I’d not let parties leave court till they had defined the issues in a case; and any interested observer or journalist could then have the resultant document – confidentially – to see where the case was going.

 

  • The existence of any inquisitorial aspect in family proceedings need not be an impediment to open justice. An inquisitorial system introduced by law might be a good idea. Its introduction could promote open justice.

 

 

4        PRESIDENT’S GUIDANCE

 

President’s guidance on reporting in family courts

 

 

  • Because ‘President’s guidance’ says so will all judges accept an informal procedure which deprives HMCTS of a fee, and where there is a procedure for parties (FPR 2010 Pt 18) in FPR 2010. Had I been asked to advise on procedure, I would not have proposed the informality suggested by the guidance.
  • How easy will it be for non-parties to make a formal application (eg where Tickle failed in Re R initially)?
  • Does the guidance apply to all family proceedings or only to children cases: probably to all.
  • ‘Standard orders’ for costs are not available in family cases, especially where one party may be a large commercial concern.

 

Procedure for varying reporting restrictions orders

 

  • The guidance deals with how ‘reporters’ may apply to vary reporting restrictions orders (ie orders made by the court to restrict them, or publicity in general, in the reporting of proceedings in family proceedings courts: RROs); though non-parties other than ‘reporters’ (accredited media representatives in Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f)) are affected by the proceedings to which the guidance relates.

 

  • The guidance nominally applies to all family cases ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the [family courts]’ (para 1); though its references to eg Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) (contempt for reporting of children proceedings) suggest it is aimed mostly – entirely even? – at children cases.

 

  • The guidance follows case of Re R (A Child) [2019] EWCA Civ 482 (15 February 2019) where a journalist appealled against a judge’s reporting restrictions order in care proceedings. That case was largely academic (as the judgement makes clear), in the sense that it decided nothing: terms had been agreed by the parties as to relaxation of the reporting restrictions originally ordered long before the appeal came on.

 

  • It is unclear why the case was not restored before the judge under Matrimonial and Family Proceedings Act 1984 s 31F(6): could he not have made the contra mundum order which the Court of Appeal said required everyone to turn up in court, as was proposed in similar – but contested order – circumstances by Peter Jackson LJ in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447? Perhaps everyone involved wanted the publicity of a synthetic Court of Appeal hearing.

 

  • The aim of the guidance is ‘to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions’ in family courts (para 1). It sets out the main rules (FPR 2010 rr 27.10 and 27.11(2)(f) and (3)) and statutory provisions (AJA 1960 s 12(1)(a) and Children Act 1989 s 97(2) which formally restrict journalists).

 

  • Little is said of the remedies available to the court, which many journalists find oppressive: namely criminal contempt proceedings against journalists and their newspapers if AJA 1960 s 12(1) is held to have been breached. (Do we know how many lawful committal applications have been made and a journal or other publisher of material found guilty?)

 

A procedure for release or varying reporting restrictions orders

 

  • The guidance tells the reader what should formally be done to vary or release a RRO propose; but then, in non-statutory terms (see comments on role of ‘guidance’ below), it tells journalists what they may get away with:

 

8 First, an application to vary or lift reporting restrictions can be made by way of an application to the High Court in Form C66, accompanied by a draft Order and served in accordance with the procedure for a RRO. However, such a procedure (which will usually need to be accompanied by payment of the requisite fee) should not be necessary in many cases. It is a time-consuming and expensive process and may generate additional unnecessary public expense or delay in a straightforward case.

 

  • We are not told why a form (Form C66) appropriate to wardship only is required, when any family proceedings may be involved. Nor is it clear what a RRO procedure is?

 

  • Para 8 continues with informal guidance given by Sir Andrew:

 

  • Where a reporter wishes to apply for reporting restrictions to be lifted after the hearing is over, this, too, may be done without a formal application being made, for example by way of an email to the court or the judge’s clerk (copied to the parties). In such cases the court must ensure that all parties are notified of the application and given an opportunity to respond (para 8(c)). (We are not told if it is anticipated that all non-parties can benefit from this to ask for restrictions to be raised.
  • Courts should be ‘astute to assist reporters’ (but not other bona fide non-parties?) seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested (unless there is good reason not to do so) (para 8(d)).
  • At the start of a hearing attended by a reporter the judge should enquire if such an application is to be made and, if there is none at that stage, invite ‘the reporter’ to alert the court if the situation changes, either at a convenient stage during the hearing or at its conclusion (para 8(f)). It remains to be seen whether courts operate this injunction – it is more than ‘guidance’ – for media representatives or any other non-parties.

 

Criminal contempt and reporting restrictions

 

  • Para 8(e) caries the reminder – though it does not explain exactly why – that any release of court material in children proceedings is covered by the contempt provisions of ‘AJA 1960 s 12 and CA 1989 s 97 and remain confidential’.

 

  • The guidance recommends a procedure for application for variation with the media representative preparing a draft order; a hearing being arranged if agreement cannot be reached; and that a full judgment should be given on any application. At para 10 the guidance continues:

 

The court, and any advocate appearing for parties to the proceedings, should provide assistance in terms of the relevant law and procedure to be followed. Any party opposing the application may then make submissions. The reporter should then be given an opportunity to reply.

 

  • Judges have often been quick to remind parties that it is not for them – the judges – to give advice (especially in this area to publishers of information, such as the media). And, yes, so far as it is known, advocates will help the court with procedure and the law involved in a case.

 

Costs and President’s guidance

 

  • It will be recalled that this guidance applies ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the’ court; though it is likely that it will be applied for any non-party (eg researcher or ‘legal blogger’; parties’ friends or relations etc) who wishes to attend court. It applies to all forms of family proceedings (not just to children proceedings). Sir Andrew’s guidance on costs is therefore surprising (some might even say ‘bold’):

 

16 Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.

 

  • Three of the more celebrated recent cases on reporting restrictions orders and attendance at court by media representatives since the new scheme came in, are Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J (brother of Lady Diana), Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), [2015] 1 FLR 19, Roberts J and Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J (Liam Gallagher). They were not, of course, ‘children cases’. I do not know what any order for costs was, but I doubt the court adopted a ‘standard’ approach. In Appleton the press was formally a party.

 

  • In family proceedings generally, orders for costs are rare, as between private parties (eg parents) or if a local authority applies for a care order; but I am by no means sure that most judges would say the same ‘standard’ rules apply for media representatives and their employers (the journalist in Re R was a free-lance). The general rule is that costs are in the discretion of the court, save where statute or a rule says otherwise (Senior Courts Act 1981 s 51(1)).

 

  • Given that the applicant for the variation is generally a commercial body or occasionally a free-lance journalist – ie not a parent, foster parent or local authority caring for children – it seems likely, save where a variation is agreed, that costs issues will often arise. And suppose the unsuccessful applicant was Dr Pelling or a journalist with a political or campaigning approach to family proceedings: should they expect a ‘standard’ no order where they had taken up the time and costs commitment of other parties? Would it be fair to those successful respondents to ignore SCA 1981 s 51(1) and CPR 1998 Pt 44?

 

II       OPEN JUSTICE

 

1        INTRODUCTION

 

Family proceedings: hearings ‘in private’

 

  • To look at the law on open court and private hearings it will first be necessary to be clear on what is law, since in this field the rule-makers have tried to make ‘law’: eg that all hearings (with some exceptions) under Family Procedure Rules 2010 (FPR 2010) r 27.10 are to be held ‘in private’. They have no power to do this. The common law says something different from the rule (as will be explained), and cannot be changed by a rule.

 

  • Rule 27.10 deals only with ‘hearings’ (the heading to the rule) or ‘proceedings’ which are to ‘be held in private’. It will be assumed here that it is intended that ‘hearings’ are to be in private. But that is all. There is much more to privacy of a hearing – or not – than how a case is dealt with in court. The law on secrecy of courts and open justice impacts on a number of other subjects, such as:

 

  • Documents: publication
  • Anonymity
  • In what terms can any reporting restriction order or other restraint of permissible publicity be made?

 

 

2        OPEN JUSTICE PRINCIPLE

 

Open justice and the common law

 

  • The concept of open justice is a common law principle. This was fully explained (in words since approved by the Supreme Court in eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558 and Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455) by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (above). In that case Toulson LJ explained the roots of open justice in common law as follows:

 

‘[69] 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.’

 

  • The principle was explained further by Lord Reed in A v British Broadcasting Corporation (above). He emphasised the principle of open justice; but explained that there were also circumstances when it may be necessary to depart from it:

 

[29] Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott [(below)], in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor… was litigation concerning a secret process, ‘where the effect of publicity would be to destroy the subject-matter….

 

‘Compelling justification’ to depart from open justice: Scott

 

  • All that said, Lord Reed concluded paragraph [29] of his judgment by emphasising the need for derogation from the open justice principle to be justified on a ‘compelling’ basis. He stressed the point that ‘All of their Lordships [in Scott] stressed the need for a compelling justification for any departure from the principle of open justice’.

 

  • The case still cited almost daily in all courts in the United Kingdom (criminal and civil, family and administrative tribunals) is still Scott & Anor v Scott (above). And, it should be recalled, Scott is a family case (from a time when a distinction between ‘civil’ and ‘family’ proceedings would probably not have been understood). In 1913 it is unlikely that their lordships would have recognised any distinction between civil proceedings and family proceedings.

 

  • In Scott Earl Loreburn explained the open justice rule (at 445) as follows:

 

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.

 

  • The case of Scott is described laconically in the law report’s head-note as: ‘The Probate, Divorce and Admiralty Division has no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency.’

 

‘The means to an end’

 

  • The ‘means to an end’ aspect of Viscount Haldane’s speech in Scott was taken up taken up Lord Devlin in Re K (Infants) [1965] AC 201, (1963) FLR Rep 520. The case concerned whether or not a mother of two wards in proceedings concerning their future should see opinion reports obtained by the Official Solicitor which she had not been allowed to see; and was the issue of whether or not she saw the reports a matter of law or was it for the exercise of the discretion of the judge.

 

  • For Lord Devlin the ‘important issue’ was whether there was there any question of a discretion at all. That there was, it had been argued, arose from the fact that the administration of justice flowed from the prerogative. Well, yes, said Lord Devlin, but:

 

… To say this of the jurisdiction parens patriae is as true as, but no truer than, to say it of the administration of justice as a whole. All justice flows from the prerogative. Save in so far as their powers are limited by statute, all judges do as they think fit. But what “they think fit” is not determined by each individually and ad hoc; it is determined by their collective wisdom and embodied in judge-made rules…. They include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties.

 

  • Certain rules are ‘so fundamental’ that they must always be observed; but even then, it was only necessary to observe such rules if to do so ‘serves the ends of justice’ (at 238):

 

The rule in point here is undoubtedly one of those…. But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded.

 

Open justice: a modern view

 

  • Scott remains, over 100 years later, the barometer for all courts and tribunals – criminal, civil (including family) and administrative. For example reference to the importance of open justice principles occurred very recently in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where, giving  a judgment with which all justices agreed, Lady Hale said

 

[36] The requirements of open justice applied to all tribunals exercising the judicial power of the state. The fact that magistrates’ courts were created by statute was neither here nor there [she was quoting Toulson LJ in Guardian v Westminster at [70]]. The decisions of the House of Lords in [Scott v Scott] and of the Court of Appeal in [GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984] and R v Howell [2003] EWCA Crim 486—respectively a family, civil and criminal case—were illustrations of the jurisdiction of the court to decide what open justice required (at [71]). Hence the principles established in Guardian News and Media cannot be confined to criminal cases. They were clearly meant to apply across the board. Nor has anyone suggested why the jurisdiction in criminal cases should be wider than that in civil. More to the point, they have since been approved by this court.

 

  • As this passage shows, the principles laid down by Scott apply in all jurisdictions – criminal and civil (including family, of course) – and at all levels of court, from magistrates upwards.

 

Open justice principle: exceptions summarised in CPR 1998

 

  • The modern law in relation to exceptions to the 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). Rule 39.2, under the heading ‘General rule – hearing to be in public’, sets out at r 39.2(1) the common law default position, namely that ‘a hearing is to be in public’. CPR 1998 r 39.2(3) lists the types of proceedings which may justify the court to order that a hearing be in private; and r 39.2(4) deals with anonymity.

 

  • CPR 1998 r 39.2(1) states ‘the general rule… that a hearing is to be in public’ and then (in full) goes on at r 39.2(3) to set out where a party may apply for, or the court may order, a hearing to ‘be held in private’:

 

(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.

 

  • Rule 39.3(4) deals with anonymity:

 

‘The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.’

 

 

3        FAMILY PROCEEDINGS WHICH ARE NOT CHILDREN PROCEEDINGS

 

(1)        OPEN JUSTICE AND PRIVATE HEARINGS

 

Private hearings

 

  • All sources – the common law (starting from Scott), AJA 1960 s 12(1) and CPR 1998 r 39.2(3) are agreed: children proceedings are to be in private/secret, save for those rare occasions where (say) a court seeks publicity for a children case (though this does not mean all parties will be anonymous: see eg Plymouth City Council v Wilkins & Ors [2019] EWFC 70 (19 November 2019), Baker LJ as a High Court judge). At the other end of the spectrum of family proceedings, divorce is unquestionably to be in open court. For practical purposes this will rarely be of any effect since contested divorce hearings are very rare. Decrees nisi are formally declared in open court.

 

  • Between these two ends of the spectrum of family proceedings there are the variety of family cases which, on Scott Clibbery v Allan principles, should be heard in open court. Mostly they are not heard in public because courts and parties accept the restrictions of r 27.10. A principled approach (see discussion of Holman J’s approach below) might require that exceptions from the open justice principle come only within the categories of case listed in CPR 1998 r 39.2(3). The effect of this approach is summarised in Table 1.

 

 

(2)        TYPES OF FAMILY PROCEEDINGS AND OPEN JUSTICE

 

Declarations and application covered by FPR 2010 Pt 8

 

  • FPR 2010 Pt 8 incudes a variety of applications which are family proceedings. Here only those in Chs 5 (declarations under Family Law Act 1986 ss 55-57) and 6 (applications for permission to apply for financial relief after overseas proceedings under Matrimonial and Family Proceedings Act 1984 (MFPA 1984) Pt 3) will be touched on. FPR 2010 r 8.27 says a Ch 6 hearing will be in private; but no reference to format is mentioned in Ch 5. In principle these would normally be in open court: they deal with status (like divorce).

 

Financial relief proceedings

 

  • Subject to what Holman J says (see below) on financial relief cases and their being dealt with in open court, there seems to be no clear rule whether cases will be anonymised or not. Release of documents will fall into two categories, and subject (mostly) to court order:

 

  • Before a hearing, and despite what is said by Mostyn J in Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 in principle there would seem to be no reason why parties’ skeleton arguments and other summary documents should not be sent out, for example to non-parties such as the media.
  • Many documents will be covered by the ‘implied undertaking’. They cannot therefore be ‘used’ outside the court proceedings save as permitted by the common law best summarised by CPR 1998 r 31.22: that is to say, unless the court gives permission.

 

  • The above must be seen through the prism of Clibbery v Allan which permitted Ms Clibbery to release documents to the press from her ‘private’ hearing (where not covered by the implied undertaking). If in doubt, a party should obtain permission from the court.

 

Domestic abuse: Family Law Act 1996 Part 4, Part 4A and Female Genital Mutilation Act 2003

 

  • The types of proceedings which are mostly set out in Family Law Act 1996 Pts 4 (domestic abuse) and 4A (forced marriage protection orders) and Female Genital Mutilation Act 2003 all, to differing degrees, have aspects which call for privacy (they may involve a child, or for other reasons may demand privacy). Often, however, they involve allegations and the trial of issues which depend on evidence which is much the same as in criminal trials.

 

  • If a child or other very personal reasons (eg FGM) are not involved it is unclear by what rationale such cases are they tried in private (other than because the rules says so); for it is the case that apart from the overarching requirement in r 27.10, each of the parts of FPR 2010 which deal with each of these subjects separately says that they must be heard ‘in private’: FPR 2010 rr 10.5 and 11.7.

 

  • Clibbery v Allan (above) was an application under FLA 1996 Pt 4. Ms Clibbery was permitted to release papers in the case to the press. FPR 2010 changed none of that. Keene LJ, the only non-family lawyer sitting in the Court of Appeal commented that perhaps more attention should be drawn to whether such cases should be in private:

 

[121] … But in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private, and as and when a court comes to exercise its discretion on this matter it will, as a result of Human Rights Act 1998 s 6, have to take into account article 6(1) of the European Convention. It will not be possible in all cases to show that an application for an occupation order falls within one of the exceptions to article 6(1) where the press and public may be excluded. That burden is likely to be particularly difficult to discharge where children are not involved.

 

Committal proceedings

 

  • All committal proceedings, save where exempted by CPR 1998 r 39.2(3) exceptions, are heard in open court.

 

Family civil proceedings

 

  • Family cases which proceed under CPR 1998 – such as Trusts of Land and Appointment of Trustees Act 1996 and Inheritance (Provision for Family and Dependants) Act 1975 – are governed by CPR 1998 r 39.2. The more rigorous – logical, even – approach of the common law to privacy of hearing, anonymity, publicity and release of documents applies.

 

 

(3)        OPEN JUSTICE AND FINANCIAL RELIEF PROCEEDINGS

 

A view of open justice in financial relief proceedings

 

  • There is divergence of view on whether cases in this middle variety of cases can be illustrated by the views of Holman J set out in financial relief proceedings in Luckwell v Limata. There seems to have been no opposition to Holman J’s direction that he would sit in open court. Amongst his reasons for sitting in open court in this, a family case, said Holman J (and echoing such earlier cases as Scott and Guardian v Westminster and their quotation of Jeremy Bentham), were:

 

[4] … It is only if the public are able to see and hear for themselves how the proceedings unfold in the court room, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability. Jeremy Bentham famously 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.

 

  • As will be seen in Ch 3 in Clibbery v Allan Thorp LJ linked secrecy in financial relief proceedings with – as he saw it – the operation of the implied undertaking not to ‘use’ (CPR 1998 r 31.22) disclosed documents outside the court process. The problem with this assessment as a reason for secrecy is that the implied undertaking applies in all civil proceedings; and its application in a particular case is not generally regarded, outside matrimonial financial relief proceedings, as a reason for secrecy in the hearing of a case.

 

 

 

III       ‘PRIVATE’ UNDER FPR 2010: A SOURCE?

 

1        INTERFERENCE WITH DUE ADMINISTRATION OF JUSTICE

 

A criminal contempt

 

  • As explained in Ch 4 an application to commit for the criminal contempt provided for in Administration of Justice Act 1960 (AJA 1960) s 12(1) depends on a hearing being in ‘private’. The contempt depends on there being a ‘publication’ of information from ‘any court sitting in private’. The contempt is criminal since it is said to be interference with the due administration of justice (though no reader will find that terminology in the 1960 Act).

 

  • Suppose that a lawyer were asked to advise a woman (Annie) in domestic abuse proceedings or a journalist (Bruce) who reports on Annie’s domestic abuse proceedings. Annie has documents about her former partner which are of interest to the press; or Bruce wants to write about the way a judge has treated Annie’s rape allegations in court (under Family Law Act 1996 (FLA 1996)).

 

  • As will be explained later Family Procedure Rules 2010 (FPR 2010) rr 10.5 and 27.10, which regulate hearings for domestic abuse cases, says that both sets of proceedings are to be heard in ‘private’. The common law say there are the criminal contempt consequences if either Annie or Bruce publish anything.

 

  • Is it the law that their case must be heard in private; or is FPR 2010 unlawful? Any competent lawyer, will check the lawfulness of any provision in issue in a case; especially where there is a question of a client being sent to prison. In this instance this will involve:

 

  • Checking the source of the term ‘private’ and of the common law open justice principle (Pt 2)
  • Reviewing what power a rule-maker has to change the common law (Pt 3); and finally
  • By what procedure can a defendant to a s 12(1) contempt application raise the question of the legality of rules (Pt 4)?

 

Legal aid

 

  • A’s legal aid position – by no means clear, like so much in this jurisdiction – was explained in Family Law for March 2020 after The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2) [2019] EWHC 3065 (QB) (15 November 2019), Chamberlain J.)

 

 

2        FAMILY PROCEEDINGS: HEARING ‘IN PRIVATE’

 

Family Procedure Rules Committee

 

  • FPR 2010 are made under powers in Courts Act 2003 ss 75 and 76 by Family Procedure Rules Committee (FPRC).

 

  • FPR 2010 r 27.10 says:

 

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.

 

  • Special mention is made of hearings of FLA 1996 Pt 4 (occupation and non-molestation orders) and 4A (forced marriage protection order) and Female Genital Mutilation Act 2003 applications, and that they are to be in private unless the court says otherwise (FPR 2010 r 10.5 and 11.7(1)). These rules are derived from provision for FLA 1996 applications in Family Proceedings Rules 1991 r 3.9(1).

 

  • The common law open justice principle is explained in Ch 2. Rules rr 10.5, 11.7(1) and 27.10 are in direct opposition to the common law. Is this lawful; what power to amend the common law does FPRC have; and what can a party to proceedings (or a non-party such as a journalist) do about it? These are the sorts of question I would ask in advising Annie or Bruce in response to their committal application.

 

Courts Act 2003: source of delegated legislation

 

  • The first thing to ask is what are the powers of FPRC to make rules? The statutory source of the powers of FPRC to make FPR 2010 is Courts Act 2003 s 75 and 76 (just as the source of powers to make CPR 1998 in Civil Procedure Act 1997). As relevant here, ss 75 and 76 provide as follows:

 

75 Family Procedure Rules

(1)There are to be rules of court (to be called “Family Procedure Rules” [(FPR)]) governing the practice and procedure to be followed in family proceedings.

(2) [FPR] are to be made by … the [FPRC].

(3) “Family proceedings” means—

(a)proceedings in the family court, and

(a)proceedings in the Family Division of the High Court…

(5)Any power to make. . . [FPR] is to be exercised with a view to securing that—

(a)the family justice system is accessible, fair and efficient, and

(b)the rules are both simple and simply expressed.

 

76 Further provision about scope of Family Procedure Rules

(2) [FPR] may —

(a)modify or exclude the application of any provision of the County Courts Act 1984, and

(aa)provide, subject to any provision that may be made in rules under section 31O(1) of the Matrimonial and Family Proceedings Act 1984, for any functions of a court in family proceedings to be carried out by officers or other staff of the court.]

(2A)[FPR] may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.]

(3)[FPR] may modify the rules of evidence as they apply to family proceedings.

(4) [FPR] may apply any rules of court (including in particular Civil Procedure Rules) which relate to—

(a)courts which are outside the scope of [FPR], or

(b)proceedings other than family proceedings….

 

  • The rules when made are to be passed by the negative resolution procedure as required by Courts Act 2003 s 79(6). That is to say, there is no debate on them or on any amendments to them unless MPs call for it.

 

  • As can be seen, it is s 76 which contains powers to ‘modify’ particular areas of practice or to exclude specific provisions. Parliament has been specific in this.

 

Changes to the common law

 

  • As can be seen, nothing is said in Courts Act 2003 about altering any aspects of the common law. Had Parliament wanted to permit the FPRC to interfere with a fundamental right (preserved even in European Convention 1950 Art 6.1), it must say so and in express terms (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328).

 

 

3        COMMON LAW AND SUBSTANTIVE LAW

 

Common law

 

  • The common law (judge-made law) can only be changed by statute law, a point made recently and emphatically in R (on the application of Miller) v The Prime Minister [2019] UKSC 41, [2019] 3 WLR 589:

 

[40] The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law. We have already given [an example] of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament….

[41] … Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public (Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ([R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513] at pp 567-568)….’

 

  • Substantive law (statute law and common law) can only be changed in the following circumstances:

 

  • Express statutory provision – Provided this is done in clear terms the common law may be changed by statute (ie by Parliament);
  • Delegated legislation – A statute may say that delegated legislation (such as Family Procedure Rules 2010 (FPR 2010) in certain very restricted circumstances) can alter the law; or
  • By the courts – A judge (having full regard to the rules of precedent), and generally only the Supreme Court, may in rare circumstance redefine the terms of the common law.
  • Henry VIII powers – Where an earlier statute says so, a government minister by later order may amend earlier legislation.

 

  • Such power as there is to amend the common law is important in the present context since the open justice principle is entirely a creature of the common law. It is affirmed, but by no means created, by European Convention 1950 Art 6.1.

 

  • The common law aspect of open justice was trenchantly confirmed by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (3 April 2012):

 

[69] 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.

 

Rules and amendment of the common law

 

  • It is important to distinguish what is said by the substantive law, from what delegated legislation (such as FPR 2010 rr 10.5 and 27.10) says; and then to be clear what limitations there are as to alteration of substantive law by delegated legislation. This was explained by Lady Hale in the Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and see the same point made by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75: he described the point as ‘trite law’) where she summarised the extent to which rules (and this includes FPR 2010; though in that case she was referring to civil proceedings rules) could alter substantive law:

 

[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].

 

CPR 1998 r 39.2(3) and Clibbery v Allan

 

  • The content of the list in CPR 1998 r 39.2(3) summarises the common law as it has developed since Scott v Scott (as explained in Ch 2). A family judge would be likely to follow it if application were made for a case to be heard in open court (eg in 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 [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at eg [24]-[27] and [68].

 

  • 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). If the list in r 39.2(3) is used it is possible to reflect on the extent what is said about open justice in FPR 2010 is in fact – and in law – within the powers of FPRC?

 

  • Until April 2014 ‘representatives of newspapers or news agencies’ could attend the family proceedings courts (family magistrates’ court hearings before the Family Court) as of right (Magistrates’ Courts Act 1980 s 69(2)(c)); so for these courts for press attendance r 27.11(2)(f) was not necessary.

 

 

4        PROCEDURE FOR OPPOSING ‘PRIVATE’ CLAIMS

 

A Boddington application

 

  • So what is to be done for Annie or Bruce (the woman in domestic abuse proceedings or the journalist who reports on those proceedings)?

 

  • The answer to this may depend on whether application is made during or after the hearing; and whether it is made by a party (A as the FLA 1996 complainant) or the journalist after the hearing. Procedure will vary (I don’t share the president’s optimism as to how a non-party journalist applies in ; but that is for another day). For now A’s adviser is looking at the underlying legal principles and for a means of challenge: how, when and in which court?

 

  • Mr Boddington (of Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143) was a commuter from Brighton and a smoker. The railway company banned smoking on the trains on which Mr Boddington travelled. He was prosecuted for breach of a byelaw which was said to prevent him from smoking. He contended that the smoking ban was ultra vires the railway company as it went beyond the company’s statutory powers under the Transport Act 1962. How was that collateral challenge to the legality of the bye-law to be dealt with by Brighton stipendiary magistrate?

 

  • The House of Lords held that the magistrate had been wrong to rule that Mr Boddington could not raise the underlying vires question as a defence to the criminal charge, because, on the true construction of the statutory provisions, Parliament did not intend to exclude that defence to such a criminal charge. It was emphasised that the first time Mr Boddington had a sensible opportunity to challenge the vires issue was when he appeared in court charged with breach. (He had not raised it in any earlier judicial review proceedings.)

 

  • Mr Boddington was entitled to make a collateral challenge in the criminal proceedings. It was not necessary for him to take separate judicial review proceedings. Lord Steyn explained this (at 175):

 

… Allowing a collateral or defensive challenge ‘avoids a cumbrous duplicity [etc, see above] as Lord Bridge put it in [Foster (above)]. In any event, expediency is not a sufficient and proper basis for taking away by judicial decision part of the jurisdiction of magistrates’ courts to rule on issues pertinent to the guilt or innocence of defendants….

 

Challenge to the validity of subsidiary legislation

 

  • Lord Steyn pointed out that if courts could not deal with the validity of subsidiary legislation, they might be left in the position of having to ‘convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge’. This would involve ‘an injustice which cannot be tolerated in our criminal justice system’. Not to permit a collateral challenge was a state of affairs which Lord Steyn found (at 173) to be too ‘austere and indeed too authoritarian to be compatible with the traditions of the common law’.

 

  • In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ held a benefits provision was found to be invalid, and it was held the Commissioner could have made findings on Mr Howker’s appeal to the Upper Tribunal (as it would now be). She pointed out (at [51-[52]) that there were two categories of case where the validity of delegated legislation might be challenged. First was where administrative acts are aimed at a particular person (see Stannard (below)). The second is where subordinate legislation is of general character (ie directed at the world at large) – as in the case of FPR 2010 r 27.10 (and see Lord Irvine LC in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 at 161, considered below).

 

  • The question for a court or administrative tribunal, as Hale LJ explained in Howker concerns the extent of the jurisdiction in the court to hear and decide on validity:

 

[52] … It has been clear since Chief Adjudication Officer v Foster [1993] AC 754 that there is jurisdiction to entertain challenges to the validity of social security regulations in the course of the social security appeal procedures. The question is not, as it was in R v Wicks [1998] AC 92 and Boddington… whether the commissioner could entertain the challenge. The question [here] is whether he was right to reject it….

 

  • That is to say, if a question of validity of subsidiary legislation arises, can the question be dealt with in the court where it is raised?

 

To be dealt with in the court where raised?

 

  • In R (O’Connor and anor) v Aldershot Magistrates’ Court, QB Divisional Court, Fulford LJ, Leggatt J) [2016] EWHC 2792 (Admin), [2017] 1 WLR 2833 MO magistrates, their legal adviser and court staff excluded Mr O’Connor and his supporters from Aldershot Magistrates’ Court when his case was to be heard. The Divisional Court (the judgment was of both judges) recalled the open justice principle (at [25]) by reference to cases such as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531, [2011] 3 WLR 388 and Guardian v Westminster Mags (above).

 

  • The Divisional Court set out the words of Jeremy Bentham (Collected Works, vol 9, p 493 and vol 4, p 316 (respectively), which are particularly apt in the present context:

 

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate.

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.

 

  • This issue must be resolved by the court on the day; not by incurring the extra time and expense of judicial review in an already busy Administrative Court list (and see Chief Adjudication Officer v Foster [1993] AC 754 and comments on expediency of Lord Reid).

 

The Family Court: court ‘to control its own process’

 

  • O’Connor was a criminal trial (as was eg Boddington). Forster and Howker (above) concerned what would now be the Upper Tribunal (where, even in child support cases, the open justice point does not arise: all hearings are in open court: Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 r 30(1); Tribunal Procedure (Upper Tribunal) Rules 2008 r 37(1)). Does it make any difference that an application in family proceedings to challenge FPR 2010 r 27.10 is in not in criminal nor tribunal proceedings?

 

  • The question here is whether a hearing in a family court, specifically of domestic abuse proceedings, may be public; or are they secret unless the rules say otherwise. That takes this article back to the examples of those who might want to attend court set out earlier, and who might want to challenge the assertion in FPR 2010 r 27.10 that the family court must sit ‘in private’ save where rules say otherwise.

 

Family court application by a non-party

 

  • The Boddington case with eg White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536, QB Div Ct (Gross LJ, Singh J) and Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 QB Div Ct (Hickinbottom LJ, Whipple J) involve applications made by parties to proceedings, as does O’Connor.

 

  • The procedure by which a non-party to proceedings applies for what amounts to a Boddington/O’Connor declaration is not clear (the journalist who obtained her reporting order in R (A Child) [2019] EWCA Civ 482 was already entitled to be in court and able to make her own application there: FPR 2010 r 27.11(2)(f)).

 

 

5        OPEN JUSTICE PRINCIPLE AND FAMILY PROCEEDINGS: A     LITTLE HISTORY

 

Thorpe LJ and Clibbery v Allan

 

  • In Clibbery v Allan Thorp LJ (at [90]-[104]) provided a history of family proceedings and publicity in relation to them. Most of his treatment of the subject was in relation to financial relief proceedings (which was nothing to do with the issue in Clibbery v Allan which related to an occupation order in Family Law Act 1996 proceedings, where no children were involved). Of the pre-1970 position he said:

 

[99] … Of course there were ancillary issues dealt with in chambers to settle disputes as to maintenance or as to children. These ancillary proceedings were always held in private and it was never doubted that publication of such private proceedings was prohibited. Of course where the chambers proceedings related to children, their exceptional character was never in doubt.

 

  • Of post-1970 practice, Thorpe LJ does not mention any law (outside children proceedings), to support the view that even financial relief proceedings should be in private, still less to say why domestic abuse proceedings should not be open (save where children are involved). Family Proceedings Rules 1991 says very little save r 3.9 above for domestic abuse proceedings.

 

  • Of financial relief proceedings, Family Proceedings Rules 1991 r says only if a question is referred to a judge (as old-style registrars might do; but which rarely happened after the 1970s) then a haring of the question was always ‘in chambers’. Perhaps it was a given that the district judge’s inquiry would anyway be in chambers.

 

Practice of family lawyers, contrary to Scott?

 

  • A justification for financial relief proceedings being in secret is the fact of the implied undertaking not to use (ie pass on to third parties) documents disclosed inter partes; but even this is a weak justification since other civil courts where parties are bound by the undertaking manage to hold hearings (subject to other exceptions in CPR 1998 r 39.2(3)) in open court.

 

  • The application then is before the court in which the hearing is to take place; or has taken place. The question of release of material is live as an issue during or after the hearing, as much as open justice is an issue at the outset of any hearing.

 

  • Open justice principles remain important not just on theoretical grounds. If a person may be committed to prison on what may prove to be a whim of rule-makers, and a whim which is largely unsupported by law, then that is an important factor for a court to consider before it hears any alleged contempt application. And this consideration must proceed on legal principle, not just on the practice developed since Scott v Scott – and often contrary to it – by family lawyers.

 

 

IV       PRIVATE, SECRET AND IN CHAMBERS

 

1        PRIVATE HEARINGS

 

‘Private’: a meaning under the court rules

 

  • Both sets of civil courts rules – Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – use the term ‘private’ of court hearings, but with little attempt in either to define ‘private’, save to say, in the case of FPR 2010 r 27.10(2), that ‘private’ is intended to dispense with any right the public may have to come into court.

 

  • Administration of Justice Act 1960 (AJA 1960) s 12(1) uses ‘private’ without defining it. As will be seen s 12(1) suggests that publication of information from certain types of proceedings ‘in private’ may be a ‘contempt of court’. A person found to be in contempt may be sent to prison.

 

  • It should be difficult to send anyone be sent to prison if they do not know that what they have done is wrong. This aspect of knowledge of wrong-doing is made more stark since ‘private’ is not defined (and see Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA).

 

  • The law is not clear on the guilty knowledge point either. That guilty knowledge is required for committal for criminal contempt (as is a prosecution under s 12(1)) is not defined in s AJA 1960.

 

  • In the previous Chapter I looked at how a person could challenge whether family law proceedings privacy applied to their case, and prevented publication of material by them (contrary to Administration of Justice Act 1960 s 12(1)). This Chapter looks at what the ‘private’ term means in law, and as against the common law open justice principle.

 

 

2        PRIVATE HEARINGS: MEANINGS IN LAW

 

‘In private’: statute and rules

 

  • AJA 1960 s 12(1)[4] under the heading: ‘Publication of information relating to proceedings in private’ says (as applicable here):

 

‘(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to [wardship and the inherent jurisdiction];

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b) where the proceedings are brought under the Mental Capacity Act 2005 [etc];…

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.’

 

  • Proceedings for maintenance of a child will be in private if in family proceedings (eg Children Act 1989 Sch 1 or MCA 1973) and caught by s 12(1)(a)(iii). An appeal under Child Support Act 1991 to the First-tier Tribunal or Upper Tribunal will be in open court, though information as private as in any family financial relief proceedings may be considered by the tribunal judges.

 

  • The court, not a rule and then only where it has power to do so, can expressly prohibit publication of information (s 12(1)(e)).

 

  • Therefore if the court is sitting in ‘private’ and one of the restrictions in s 12(1) applies then that provision creates a contempt. Probably – though the law is not clear – only if a person intended to breach s 12(1) (ie guilty intent also known as mens rea) can they be successfully committed for failure to comply with s 12(1).

 

  • Nothing is said in s 12(1) about the majority of family proceedings (ie outside children proceedings); though financial relief proceedings may be caught by another common law rule, namely that a party may not publish documents disclosed under compulsion (eg ‘full and frank disclosure’)).

 

  • Subject to that publication of documents and other material from family proceedings other than children proceedings appears not to be caught by s 12(1), even though a hearing was dealt with ‘in private’. (I add, though it is of little direct relevance here, that Children Act 1989 (CA 1989) s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ a child involved in proceedings; but the prohibition comes to an end once the proceedings have been concluded (Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11; Re J (A Child) (contra mundum injunction) [2014] 1 FLR 523, [2014] 2 FCR 284 Sir James Munby P).)

 

‘Private’ and civil proceedings

 

  • By most definitions of the term family proceedings are civil (in that they are not criminal); but since April 1999 they have been ghettoised by CPR 1998 r 2.1(2), so that they have eventually, been given their own set of rules (many of which follow or are derived from CPR 1998). All that said, the rules committee and family judges have affirmed that CPR 1998 does indeed echo or codify the common law (or provide a way that family proceedings can be conducted where FPR 2010 are silent).

 

  • CPR 1998 r 39.2(1) requires that all civil proceedings be in public, save as set out in r 39.2(3), the main part of which says:

 

(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;..

 

  • I suggest that this is a codification of the common law as it now stands; and that this list should be what guides family judges who seek to follow the law, not the rule-makers.

 

‘In private’ and the common law

 

  • In the absence of any statutory definition of ‘in private’, in secret and so on, what does the common law say as to what ‘private means’? The subject of what is meant by private (or in chambers) in the period since the drafting and introduction of CPR 1998, really comes alive with Forbes v Smith [1998] 1 All ER 973, [1998] 1 FLR 835, Jacob J (21 December 1997) where he gave permission to publish a judgment given in chambers in bankruptcy proceedings. In so doing he said (at FLR 836):

 

The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets’ case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents.

 

  • Less than two months later, at a time when the Civil Procedure Act 1997 had been on the statute book for a year, and drafting of what became CPR 1998 was well under way, the Court of Appeal gave judgment in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (12 February 1998). The case concerned claims against a tobacco company, on behalf of a variety of claimants. They said their cancer gave them a cause of action against the company.

 

Public access to chambers hearings

 

  • In Hodgson the court reviewed the ‘exceptional’ circumstances for hearings in camera recognised in Scott and emphasised the distinction between ‘chambers’ on the one hand and ‘secret’ and or ‘private’ hearings on the other (at 1070). The judgment of the court was given by Lord Woolf MR who was then chairing the committee which was preparing CPR 1998:

 

A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in [Scott] or the court sits in chambers and the case falls in the categories specified in [AJA 1960 s 12(1)] (which include issues involving children, national security, secret processes and the like).

 

  • The difficulty the court confronted (as they put it at 1071) was that the subject of what was meant by ‘private’, in chambers etc was ‘virtually free from authority’. There was nothing in case law to guide them. They, the judges, must therefore frame the law. They did so in the light of their assertion of clear principle:

 

However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted.

 

  • It is clearly stated that as far as possible public should have access to chambers hearings, and to what happened at hearings – that is publicity including of judgment. This will always be subject to the exceptions in AJA 1960 s 12(1). And this statement of principle from the Court of Appeal was re-enforced by a differently constituted court in Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, CA (judgment on 30 September 1999)

 

[24] We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in [Hodgson v Imperial], in which he said (at 1071), that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.

 

 

3        ‘PRIVATE’ AND FAMILY PROCEEDINGS

 

Clibbery v Allan

 

  • So far as there was then, or is now, any distinction between the two types of proceedings, the case law so far relates to civil proceedings. Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 saw the Court of Appeal looking at whether documents from a family hearing ‘in private’ could, even so, be passed on for publication to the press. They held that such publication was permissible. Dame Elizabeth Butler-Sloss P considered Hodgson and provided the following definition:

 

[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 summarised a variety of circumstances where in family proceedings – then governed still by Rules of the Supreme Court 1965 and County Court Rules 1981 alongside Family Proceedings Rules 1991 – were conducted in chambers, sometimes because the rules said so, sometimes merely out of undefined habit or practice.

 

  • In Department of Economics, Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] EWCA Civ 314, [2005] QB 207 the Court of Appeal – Mance LJ – provided a synthesis of the earlier decisions of the Court of Appeal in Hodgson and Clibbery v Allan. The case concerned whether a judgement in an arbitration should be published where, as a result of a mistake, a summary had been published by Lawtel. The judge said no. Arbitration proceedings were generally in private. The Court of Appeal allowed publication of the summary, but said the judgment as a whole should remain private.

 

  • Mance LJ referred to what Dame Elizabeth had said, seconded by Keene LJ,

 

[26] Keene LJ agreed with Dame Elizabeth Butler-Sloss P and endorsed (at [120]–[121]), “the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified”, adding that “in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private”. He observed that the burden of showing that such an application falls within one of the exceptions to European Convention 1950 Article 6(1) “is likely to be particularly difficult to discharge where children are not involved”.

 

  • Perhaps Keene LJ’s criterion – ‘whether a hearing in private can be justified’ – can be commended to the rule-makers; and to any judge before whom r 27.10 may be challenged.

 

Scott v Scott: no absolute rule of open court

 

  • There is no absolute rule as to when a case should be heard in private or in open court: R (Pelling) v Bow County Court [2000] EWHC 636 (Admin) QB Div Ct recalls that point. Subject to that and to the constrictions of s 12(1) anyone who wants to go into a private hearing or to publish a judgment from a chambers hearing is entitled to draw attention to the fact that the statute law and rules neither of them clearly say what is meant by ‘in private’.

 

  • The common law asserts – or appears to do so – that there remains a distinction between open court hearings, hearings ‘in private’ and hearings ‘in secret’. At the very least, in the absence of any court order to the contrary (the Moscow case was an arbitration, and there was already contrary order) judgements from a hearing ‘in private’ can be published (subject to any anonymisation).

 

Protected parties, family proceedings and privacy

 

  • When can a hearing ‘in private be justified’? The clearest instance of a right to privacy is where the proceedings relate to a protected party or a child. A child and protected party in the context of family proceedings are defined in the respective sets of rules. Procedurally a child and a protected party’s representation are dealt with together in CPR 1998 Pt 21. In family proceedings representation for a protected party is dealt with under FPR 2010 Pt 15 and for a child under FPR 2010 Pt 16 Chapter 5.

 

  • The approach of the House of Lords in Scott to open justice and the exceptions to it summarised in Scott. 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. 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.

 

 

 

V       RELEASE OF COURT MATERIAL

 

1        INTRODUCTION

 

Release of court material

 

  • If you are a journalist or anyone else who wants to go into a court hearing then you will make little of the case, unless the court says you can have case material in advance of the hearing, or unless a party to the case or their representative, has talked to you (and they should be careful if they do so). There is no provision in the common law which clearly states what material can be released to those who are permitted to attend court, and to make sense of the proceedings they are hearing; though there are cases at the highest level which assert the desirability of such release.

 

  • Statute, so far as it makes provision, only threatens committal, as stated by AJA 1960 if – in relation to children proceedings – publicity is given to court material. There is no positive assertion that material can be released for proceedings to be understood by those attending.

 

  • This Chapter looks specifically at the question of what court material may be released before and during court proceedings; and then to the tangentially related questions of collateral ‘use’ of material disclosed between parties; and then of what information may be passed on by parties to children proceedings.

 

  • The Chapter therefore proceeds as follows:

 

 

Release of court material

 

  • The subject of release of court material has three main components:

 

  • Obtaining documents for, for example, better understanding of a hearing which a non-party is entitled to attend: considered in this Chapter;
  • Use of documents disclosed by compulsion as between the parties, and mostly subject to an implied undertaking that they will not be used further outside the court proceedings (not directly relevant here); and
  • Release of documents from a case after a hearing.

 

 

2        COURT MATERIAL: RELEASE BEFORE OR DURING A HEARING

 

Release of skeleton arguments and witness statements

 

  • Release of court material is bound up with open justice principles; for if a person permitted to come into court cannot read the same documents – or most of them, suitably anonymised – as those taking part in the proceedings (especially the judge and the parties and their advocates (if any)) – then it is difficult to see how the proceedings, at least to them, are ‘open’. They cannot properly understand what is going on in court if they do not have access to the same material as the judge; and if they cannot properly understand what is going on in court it is difficult to see how it can be said that justice is ‘open’. So what material can be released to those permitted to attend family courts otherwise dealing with cases in private.

 

  • As long ago as July 2010 the subject of release of documents to the media and the public generally was addressed by Munby LJ as part of his extra-judicial ‘Lost opportunities: law reform and transparency in the family courts’ (The Hershman-Levy Memorial Lecture for 2010 1 July 2010 especially at pp 14 and 15). He analysed what he called ‘transparency’ under three headings:

 

  • First, access to the proceedings.
  • Second, reporting of the proceedings.
  • Third, and more generally, disclosure of information out of the proceedings.

 

  • His ‘access’ – the first point – is the subject of this Chapter. On the subject of release of court material for non-parties who attend court better to understand the case Munby LJ said:

 

Access to the proceedings does not involve only the question of whether the media (or indeed the public generally) should be able to go in to court and watch the proceedings. It also involves the difficult question of whether and to what extent those allowed to watch the proceedings should also be allowed access to court documents, because unless they do much of what is going on is likely to be completely incomprehensible, given how much of the relevant material nowadays is in writing and will have been pre-read by the judge.

 

  • Munby LJ asked himself: ‘How far does one go?’ The journalists say, he explained, that for them ‘there is no point in being in court unless they can understand what is going on’, which is the point made by judges at least since Lord Scarman in Harman v Home Office and by Toulson LJ in Guardian v Westminster. They cannot have the court bundle, he emphasised;[5] but he went on:

 

… But if they say ‘of course we accept we cannot see everything, but what we ought to be able to see, and, of course, it will all be published anonymously, is, for example, the care plan, the position statements, the skeleton arguments’ what then? There are very real questions and the answers are far from obvious, but the emerging jurisprudence of the Strasbourg court suggests that there may soon be powerful arguments based on Article 10 that the media will be able to deploy….[6]

 

  • Munby LJ concluded his comments on ‘Access’ for non-parties and journalists as follows:

 

The traditional system is neither principled nor, increasingly, such as to command public confidence. Surely both principle and pragmatism demand that we open the family courts, that we drastically relax the present access restrictions.

 

  • This subject will be considered in Part 4 of this Chapter, alongside Munby J’s case of Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415 but it remains the case that in pre-hearing release terms (as opposed to release of material after a hearing) the law has moved hardly at all since 2010 on pre-hearing release. As will be seen in the next Chapter, it is beginning to move in relation to release of material after a hearing.

 

‘To understand the case’…

 

  • Toulson LJ replied to this submission by reference to four cases which, in the context of release of court documents, illustrated the extent to which the courts could release documents to help the media and public understand hearings. First there was Lords Scarman and Simon in Harman v Home Office [1983] 1 AC 280 at 316 where they said that, yes of course a judge must ensure ‘reasonable expedition’ in a case; but he must also be ‘concerned to ensure that justice not only is done but is seen to be done in his court.’

 

  • They then related these concerns directly to open justice principles; for without a proper understanding of what is going on they reasoned – because the judge was reading a variety of material in the case – how can it be said a trial is both open, and justice be seen to be done in the course of proceedings:

 

And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.

 

  • Toulson LJ went on next to consider the judgment of Lord Bingham CJ in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-512. Lord Bingham’s starting-point was Lord Scarman in Harman v Home Office; and he drew attention to the extent to which, in the sixteen years since that case, the requirements for skeleton arguments, chronologies and so on had increased both to assist the court and to improve expedition:

 

Since the date when Lord Scarman expressed doubt in Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

 

  • So, said Lord Bingham, the likelihood is that even ‘an intelligent and well-informed member of the public, present throughout every hearing in open court’ would not be able fully to understand the hearing; and that this was likely to impact on the extent to which justice could be said to be open. Efficiency and openness must be balanced:

 

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.

 

 

3        COURT MATERIAL: RELEASE BEFORE OR DURING A HEARING IN FAMILY PROCEEDINGS

 

Release to non-parties in family proceedings

 

  • The question of to what documents an observer of any court proceedings may have access, must be answered by reference to the common law in open court proceedings; and then by the common law as seen from the point of view of proceedings in private to which an observer has access (eg under FPR 2010 r 27.11(2)).

 

  • In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn Jwas considering a reporting restrictions order on a proposed hearing of financial relief claims in relation to two well-known musicians. Under the existing order the fact of the case could be publicised as could photos of the parties arriving at court. Otherwise no other person could be named. Financial information could not be reported on. The husband and wife both applied for the exclusion of the media under FPR 2010 r 27.11(3).

 

  • The issue before Mostyn J was to reconsider the reporting restrictions order and to decide whether it should be lifted or modified. Indeed he defined the issue in the following terms (italicised passage below):

 

[5]     All I am being asked to decide today is whether the existing order, which restricts the reporting of the proceedings, should be lifted, or modified, at this point [italics added]. I am not being asked to decide whether His Honour Judge O’Dwyer [the judge who was to try the financial relief application] should publish his judgment or, if he does, whether it should be anonymised or redacted, and if so, how. That is a matter solely for him…. I should also make clear that it will be for him, in the light of his decision about what to do with the judgment, to revisit the reporting restriction order which I will now make.

 

  • Mostyn J said that the parties’ child, and Gallagher’s three children, must not be identified, in accordance with the terms of FPR 2010 PD12I (which applies to an unrepresented child in family proceedings). In a passage which has been regarded as a correct statement of the restrictive state of the law on release of court material for the understanding of proceedings, Mostyn J went on to consider ‘press’ access to documents:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR 2010 r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly. Further still, FPR 2010 PD 27B paras 2.4 and 5.2(b) confirm the ‘unaffected’ continuance of the existing reporting restrictions for such proceedings held in private….

 

  • Rule 29.12(1) expressly gives the court power to release them to non-party applicants on reasonable application being made. What r 29.12(1) actually says it not what Mostyn J says it says. And of course what Mostyn J says, incorrectly, has been made still more incorrect by Cape Intermediate v Dring.

 

 

 

 

VI       CONCLUSION: OPENNESS AND FAMILY PROCEEDINGS

 

1        OPENNESS AND FAMILY COURTS HEARINGS IN 2020

 

Openness: law in opposition to practice

 

  • The common law on openness in justice is that all proceedings of any sort should be heard in open court. The idea that family courts are in any way different from any other courts – criminal or civil – should be rejected as unlawful and contrary to basic English law principles.

 

  • Family proceedings have developed their own brand of secrecy for family proceedings. As explained in Ch 2 this has been largely without reference to common law principles (save in the case of children proceedings).

 

  • The President is now asked to look through the other – the correct, I believe – end of the family proceedings hearings telescope. He should please start from the premise that the law is that all proceedings, like any other, shall be heard in open court. Certain family law proceedings – perhaps even a majority – may justify a hearing in secret or even in private; but that this must be on the same principles as any other civil proceedings (ie CPR 1998 r 32.3(2)).

 

A review of practice: what are the principled reasons for secrecy or privacy?

 

  • Looking at the hearings telescope will involve a careful review of practice and of how the privacy impulse has developed over the past 100 years in family proceedings (eg in relation to financial relief). A full review of, and adherence to, the law can, I believe, produce a principled and relatively easy way to determine the forum for hearing in any type of case.

 

  • Privacy may be what family judges ‘favour’ (see eg the comment in Family Court Practice on FPR 2010 r 27.10). I doubt Bentham, the House of Lords in 1913, Toulson LJ in 2012 or indeed the Supreme Court today would have appreciated that; and anyway, what is the law?

 

  • If the law is first – and clearly – defined by this Review it can provide a principled starting point for any review of openness (or not, in appropriate cases) in family proceedings: whether to be in open court, private or secret. What is proposed here, for the reasons in Ch 3, is not just a question of tinkering with rules.

 

  • Once forum (ie form of hearing) is defined, application can be made – if a party is advised, or so chooses – for the court to sit in some way other than that set out in the open justice rules. Application could be made for a hearing in private or secret; some could be in private some open; screens and other means of partial privacy (well known to Youth Justice and Criminal Evidence Act 1999) could be introduced.

 

  • If hearings are in open court, a concession to normality could be introduced by preventing advocates wearing robes (and barristers from wearing wigs). To that extent family courts could keep a measure of exceptionalness from other common law courts; and perhaps lead the way….

 

Openness in civil proceedings family cases

 

  • Open court hearings are the norm in which an increasingly large proportion of family cases are dealt with. A substantial proportion of couples must rely on CPR 1998 proceedings to resolve their differences over ownership of unmarried property (when any privacy of their hearing is dictated by CPR 1998 r 39.2(3).

 

  • Since St Valentine’s Day 2020 (as it happens) another group of couples has joined the family law cohabitants outside FPR 2010’s pale, namely those who have a ‘non-qualifying’ marriage ceremony (perHM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020)). As cohabitants their case would normally be dealt with in open court; and would be almost invariably if under CPR 1998 (eg for a declaration under ToLATA 1996: see eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513, Mostyn J).

 

  • Family lawyers therefore confront the absurdity not only that the law on which cohabitation cases is resolved is very different from the law which governs financial relief on marriage breakdown; but that different procedural rules apply between one and the other, especially as to whether their financial case is heard in secret/private or in open court.

 

‘Private’ hearings; and release of court documents

 

  • Unless otherwise ordered all proceedings in secret will be anonymised. All other proceedings will have parties named, unless the court directs otherwise, or orders that some parties or witnesses should be anonymous.

 

  • Release of documents comes with open justice. Where a person, journalist or other, askes for documents in advance of a hearing certain documents – anonymised where appropriate – should be provided. This should be in accordance with principles set out in equivalent to CPR 1998 r 5.4C and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (29 July 2019); and applies whether a case is in open court or in private. To provide a copy of the court bundle is not likely to be appropriate.

 

  • Documents to be released will be for the judge to decide (per Cape Intermediate v Dring), but might include:

 

  • Skeleton arguments (or position statement, if different)
  • Witness statements (without enclosure)
  • Experts reports
  • Threshold document in care proceedings
  • Case management directions
  • Any schedule of assets

 

Blanket ban on openness: application of CPR 1998 r 39.2(3)

 

  • A blanket ban (as now, with minor exceptions) on openness should please be rejected as unprincipled. The table at the end of this paper seeks to set out the main types of family proceedings and to say how they are dealt with now.

 

  • Using the table below, or similar, administrators and lawyers with the President must please find a way of harmonising the hearing of family proceedings with the law. The most immediate must be domestic abuse where a new bill is expected soon; and where parts of that bill may seek to harmonise family, civil (ie per CPR 1998) and criminal proceedings. After all, the same facts can give rise to claims in all three jurisdictions, where only family is in heard in private. Openness – with appropriate protections for the complainant (screens, evidence in a separate room: if criminal proceedings can do it (eg under Youth Justice and Criminal Evidence Act 1999), surely family judges can do better) – in JH v MF [2020] EWHC 86 (Fam) (22 January 2020), might have tamed some of the inappropriate excesses of the circuit judge appealed from.

 

  • Openness must be the rule, with privacy – even occasionally secrecy – the exception where need be. A criterion to achieve this would be to apply the equivalent of CPR 1998 r 39.2(3) to all Family Procedure Rules 2010 cases and to list the ‘private’ or ‘secret’ cases to which the FPR 2010 equivalent applies.

 

Clarity of expression

 

  • And finally, openness of justice must go hand-in-hand with clarity of expression of law. The law must be clear and ‘clearly expressed’ (see Courts Act 2003 s 75(5)) especially where liberty is in issue (see eg contempt committal under Administration of Justice Act 1960 s 12(1)(a)).

 

[1] I acknowledge with thanks the revival of this press report by Rhys Taylor, a barrister. Mrs Lewis was his great, great grandmother

[2] Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143; and see ‘A voyage around Mr Boddington’ by David Burrows (ICLR blog, October 2019) https://www.iclr.co.uk/blog/commentary/a-voyage-round-mr-boddington/

[3] http://www.transparencyproject.org.uk/the-crisis-in-private-law-by-sir-james-munby/

[4] Of matters requiring attention in the family courts Sir James Munby said in a recent talk (6 February 2020: as published) on ‘private law’ cases http://www.transparencyproject.org.uk/the-crisis-in-private-law-by-sir-james-munby/: ‘there is an urgent need to address the problems associated with section 12. It has become increasingly clear that section 12 should be repealed, to be replaced, no doubt, with much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world.’

[5] A point seconded by the more recent Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429

[6] European Convention 1950 Art 10

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