Robert Craig and Gavin Phillipson: Could the ‘Meaningful Vote’ End up in Court?

Is it Parliament v the people – not a pretty site, but perhaps an inevitable bye-product of Brexit?

UK Constitutional Law Association

One of the most controversial issues during the passage of the European Union (Withdrawal) Act 2018 (‘EUWA’) was the so-called ‘meaningful vote’, which parliamentarians hoped would give the Commons a real say over any ‘deal’ reached by the Government with the EU (see previously on this blog posts by Alison Young and Jack Simson Caird). The provisions governing the vote are now set out exhaustively in s 13 EUWA (below).

This issue is now coming sharply into focus amongst parliamentarians and commentators as negotiations with the EU enter their final stages and attention starts to turn to the question of when and how the meaningful vote will take place. A post by Jack Simson Caird just this week considered some of the procedural issues surrounding the process of approval. This blog addresses the issue, recently alluded to by the Government, of possible legal challenges that might arise should…

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Funding family proceedings for the weaker spouse

20160419_174504Funding and when may it be available

 

A coalition of questions led me to think about legal services orders: the orders which enable judges, in the view of some husbands, to force them to pay their wives to sue them. To the more enlightened, it enables family courts to require the financially more robust party (a husband (H), say) to provide from assets controlled by him enough to ensure Family Procedure Rules 2010 r 1.1(2)(c) is complied with: that both ‘parties are on an equal footing’. In other words, yes, that he must release cash to ensure his (former) wife (W) has enough to pay her own lawyers. At a time when so many spouses are acting in person in family proceedings, I wonder how many parties – mostly it will be wives or mothers – are applying for orders.

 

These thoughts were given prominence by press reports that Princess Tessy of Luxembourg had conducted her own financial relief proceedings; though had she not wanted to I am sure funds would easily have been made available to fund her own lawyers. By contrast, a new client of mine had been advised by previous lawyers – three at least, as far as I could see from her papers; and none seem to have advised her to ask the court to order cash from her former husband, to for representation and for train travel to the distant court where he was conducting their matrimonial financial relief proceedings.

 

‘Family proceedings’ for present purposes, means proceedings which happen in the family courts (ie Family Division of the High Court or the Family Court (formerly county courts)). Mostly the proceedings dealt with in the family courts are:

 

  • Children proceedings (often called ‘private law’)
  • Care (or ‘public law’) proceedings
  • Domestic abuse and occupation order proceedings
  • Financial proceedings after divorce (ie under Matrimonial Causes Act 1973 (MCA 1973))
  • Financial relief for and in relation to children (Children Act 1989 Sch 1)
  • Divorce

 

Parents and children in proceedings under 2 will have legal aid always. Those who are financially eligible are entitled to legal aid under 3. Defended divorce is very rare. Unless any human rights issues arise (regarded as ‘exceptional’ under legal aid legislation), legal aid in children proceedings will only be available – again very rare – for a child who is joined. Parties who have had legal aid for domestic abuse may be entitled also to legal aid under 1,  4 and 5; but not otherwise.

 

The question of payment by one spouse to another arises from 4 (and for parents under 5 – probably: the law is not entirely clear). That is what this note deals with.

 

Funding for financial relief proceedings: legal services orders

 

So what funding may be available in financial proceedings under divorce legislation? Can one materially weaker spouse (say, the wife (W)) claim funding for such proceedings from the other spouse (H)?

 

MCA 1973 s 22ZA(2) says a party to ‘proceedings…for financial relief’ can seek an order for payment for ‘legal services’ (as defined by s 22ZA(10)) (s 22ZA(1) is about funding divorce costs). The presumption is it will be the financially weaker spouse only who will apply for the order, a ‘legal services order’. Section 22ZA enables a spouse to seek funding to employ lawyers from her spouse. I am sure that if Princess Tessy of Luxembourg had wanted to apply for a legal services order it would have been granted. By all accounts the Prince had the necessary cash.

 

In a case where the means of the parties are more routine, if a husband has his own lawyer, the question must be: why should not H’s expenditure for a wife’s lawyers where she cannot pay from her own means be balanced – at least in part – by him for lawyers of her choice? Section 22ZA provides a statutory basis for her to make such an application to the court.

 

If the court is to make an order, it must be satisfied that there is no other source of funding available to the applicant spouse (s 22ZA(3)) eg a bank loan or other borrowing (s 22ZA(4)(a)) or a loan charged on property (s 22ZA(4)(b)). And MCA 1973 s 22ZB sets out the factors about the parties’ circumstances the court must take into account before it makes an order.

 

At a time when so many wives of modest means are presenting their own finance cases, I wonder how many are using legal services orders to help them to finance their own lawyers?

Confidentiality and Legal Aid Agency

20160419_170156How legal is disclosure of information by Legal Aid Agency?

 

A report from Buzzfeed.News tells the reader (5 October 2018) that Legal Aid Agency (LAA) have passed on confidential information to the Ministry of Justice such that legal aid was denied to three ultimately successful applicants for judicial review against another government department. It seems that LAA have to put out their press notices through Ministry of Justice. As will be clear from this article release of information by the Agency is probably in breach of their own duties under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA). If disclosure is outside the terms of LASPOA it may even render those involved liable to prosecution (whether or not condoned by Mr Grayling, then Lord Chancellor).

 

So what are LAA allowed to pass on to others outside their office, and how is this affected by existing case law? LASPOA s 34[1] says that ‘information’ provided by ‘an individual seeking or receiving’ legal aid (s 34(1)) ‘must not be disclosed’ (s 34(2)) at all by LAA, save as set out in s 35. Section 35 boils down to that disclosure is allowed by LAA to enable or assist the Secretary of State for Justice ‘to carry out functions’ under LASPOA or otherwise; or to enable LAA to carry out its functions or courts or others ‘on whom functions are imposed or conferred by’ the Act; or under a court order, in relation to a prosecution, or otherwise for court proceedings.

 

What do ‘disclosure of information’ restrictions on LAA mean?

 

So what does s 34 ‘must not be disclosed’ mean? For most people this would not be too difficult. If confidential information is received it is meant to be private as between the confidante (LAA, in this case) and the confidor (applicant for legal aid). Generally the information can only be passed on by the confidante with permission from the confidor. The position if the confidentiality is also legal professional privilege (LPP) is even more strict: a lawyer may not pass on information which is covered by privilege. Much of what is in a legal aid application will be covered by LPP.

 

Confidentiality and LPP are common law concepts. A working definition of the former was provided in modest terms by Lord Goff in Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] UKHL 6, [1987] WLR 776, (Spycatcher case) at 281 (it remains the best far provided (see eg Confidentiality by Phipps and Toulson, (3rd Edition, 2012)):

 

I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word “notice” advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.

 

LPP has been frequently defined. The best modern definition is in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513. Either the Derby justices case or Lord Goff’s definition of confidentiality should lead the LAA to be clear that most of what they receive is confidential, and – in addition – that much of it is covered by LPP.

 

Snaresbrook Crown Court case

 

The issue of confidentiality and the legal aid authorities arose in R v Snaresbrook Crown Court exp Director of Public Prosecutions [1988] 1 QB 532. In that case A had pleaded guilty to a charge of assault, but complained through his solicitors that at the time of his arrest he had been assaulted by a named police officer and his nose broken. A applied for legal aid to bring an action for assault. Police inquiries revealed that his nose had been broken two days earlier. He was charged with attempting to pervert the course of justice.

 

The prosecution requested production by The Law Society (then responsible for administration of legal aid) of A’s application form. The office declined. The DPP sought an order under Police and Criminal Evidence Act (PACE 1984) s 9 on the ground that the form was ‘special procedure material’. The Crown Court held that the form was privileged under PACE 1984 s 10(1) (ie ‘legal privilege’ as defined by PACE 1984 s 10(2): a definition it is said which covers legal professional privilege (LPP): R v Central Criminal Court exp Francis & Francis [1989] AC 346). The judge refused to order production.

 

The DPP application for judicial review in Snaresbrook was refused. A was the client of a professional legal adviser and the legal aid application a communication between him and The Law Society for legal proceedings. It was therefore within the definition of items subject to ‘legal privilege’ under s 10(1).

 

Confidentiality, Snaresbrook and what can the LAA disclose?

 

So what may LAA release to anyone else and especially to Secretary of State for Justice (or Lord Chancellor)? In Snaresbrook, Glidewell LJ considered in particular the extent to which The Law Society could disclose information. Legal Aid Act 1974 s 22 was the then version of s 34. So far as material to that case s 22 said:

 

(1) Subject to subsection (2) below [ie where a person consents to disclosure], no information furnished for the purposes of this Part of this Act to The Law Society, or to any committee or person on their behalf, in connection with the case of a person seeking or receiving advice or assistance or legal aid shall be disclosed otherwise than …

(b) for the purpose of any criminal proceedings for an offence under it or of any report of such proceedings….

(3) A person who, in contravention of this section, discloses any information obtained by him when employed by or acting on behalf of The Law Society shall be liable on summary conviction to a fine not exceeding £100.

 

Legal Aid Act 1974 was harsher on anyone who disclosed. LASPOA 2012 ss 34 and 35 are broader on what may be disclosed by LAA staff (or others) to third parties; but the meaning of s 22, and thus of the reach of LASPOA 2012 s 35 in terms of confidentiality, is explained by Snaresbrook. The case still applies to confidentiality, LPP and the legal aid application. Glidewell LJ explains that in that case what is in effect litigation privilege applies to A’s documents (at 536G):

 

The application for legal aid, on the face of it, is a communication between him and another person, namely, the area officer of The Law Society. Clearly it was made in contemplation of and for the purpose of legal proceedings. On the face of it the material does come within the definition of items subject to legal privilege in [PACE 1984] s 10(1).

 

LAA leaks and LASPOA disclosure

 

So far as the LAA leaks are concerned the material they include can be taken to include matters covered both by confidentiality (see Lord Goff’s definition in Spycatcher (above)) and by the more protective confidentiality of LPP. A person does not waive privilege because he or she passes documents otherwise covered by privilege to a third party (B & ors v Auckland District Law Society (New Zealand) [2003] UKPC 38, [2003] 2 AC 736), such as LAA.

 

The press report I have seen is not enough to tell me that s 34(2) (subject to s 35) has been breached. There seems to have been slackness in LAA and a lack of stringency in its relations with Lord Chancellor and other government departments. Proceedings under s 34 can only be taken with the consent of the Director of Public Prosecutions (LASPOA 2012 s 34(5)). Should the DPP be looking into this a little more?

[1] 34 Restriction on disclosure of other information

(1)This section applies to information that is provided—

(a)to the Lord Chancellor, the Director, a court, a tribunal or any other person on whom functions are imposed or conferred by or under this Part, and

(b)in connection with the case of an individual seeking or receiving services provided under arrangements made for the purposes of this Part.

(2)Such information must not be disclosed, subject to the exceptions in section 35.

(3)A person who discloses information in contravention of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Family proceedings: a ‘watchdog’ role

20170407_154512Legal bloggers to attend court

 

On 1 October 2018 a new scheme was unveiled which enabled ‘legal bloggers’ with the right qualifications and paperwork to go into family courts (see Family Procedure Rules 2010 (FPR 2010) Practice Direction PD37J). These courts would otherwise be closed to them because the hearings concerned are ‘in private’. Thus bloggers (per the new FPR 2010 r 27.11(2)(ff) amended into FPR 2010 r 27.11(2)) are added to the list of those able to attend court.

 

Generally, no one is allowed into a family court except the parties, their representatives, witnesses, ‘officers of the court’ and so on (r 27.11(2)(a)-(e)). In addition, the rule says that for hearings in private the following may also come into court (with (ff) added by the recent PD37J) (‘court attenders’):

 

‘(f) duly accredited representatives of news gathering and reporting organisations;

(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits to be present.’

 

Why are they there? The general common law rule is that English justice must be dealt with in open court. This was explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (in a case about release of hearings documents to a newspaper):

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: “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.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice….

 

A ‘watchdog’ role

 

Taking his lead from Bentham, when the original version of r 27.11(2) came in, in Re Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR 1467, Sir Mark Potter P described the role of the ‘watchdog’ press under the new rule:

 

[38] The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the court. Thus the position has been created that, whereas the media are now enabled to exercise a role of ‘watchdog’ on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.

 

What is needed to give a real watchdog, and Benthamite, role for the media and others – eg legal bloggers – who attend family proceedings trials (per FPR 2010 r 27.11(2)(f)-(g))? I suggest the following:

 

  • The whole point of a ‘watchdog’ role – as envisaged by Bentham – is to keep judges up to the mark. Those with the privilege of attending court under r 27.11(2) must bear that in mind: it is the judges as much as anyone whom they are keeping an eye on; and they should take on that role accordingly. For example, how many cases from circuit judges in care proceedings in the past year (a) get permission to appeal; and (b) result in appeals being allowed and the appellate court being publicly critical of the circuit judge/ I hear few watchdogs commenting on that state of affairs.

 

  • Access to hearing documents before a hearing, so that the person attending court has a good idea what is going on, much as if that person was in open court (Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795; and see Court documents: Part 1 – to make sense of family court proceedings and the following three articles on what may be released from hearings).

 

  • Someone – the court, the applicant? – should ensure that a basic outline of the facts and any law principles in issue in any individual case is available to the court attender: but only where the case is one which is listed to last (say) for more than one day.

 

On this basis the family proceedings watchdogs can start constructively to review and comment on what family courts judges are doing in our name, and as Jeremy Bentham envisaged.

 

The critical question will be: to what extent are lawyers who attend hearings willing to be frank in their views of the ways individual judges deal with family cases? Will they be prepared openly to disagree with what judges do; and will any legal journals be willing to publish content which is openly critical of individual judges? For example:

 

  • What of the judge who case managed a defended divorce case by allowing evidence only from the parties themselves (overlooking the need for corroboration); and restricted the period of marriage over which the petitioner’s evidence (Owens v Owens [2018] UKSC 41)? And what of the unfortunate petitioner whose lawyers permitted this to happen?
  • Or the judge who failed to ensure that a 15 year old, who made sex abuse allegations against a father, had her allegations tested by or on behalf of the father (Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83, [2017] 1 FLR 1476) before he was deprived of contact with his small child, without challenge to the evidence of the 15 year old.
  • Care order made within three weeks of the application at a case management hearing (all parties agreed the appeal should be allowed): Re S-W (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 2 FLR 136

 

Will blogger watchdogs raise concerns at the way domestic abuse hearings (mostly Family Law Act 1996 Pt 4) are routinely heard in secret by family courts. On the same facts any prosecution will be heard in open court; and the common law would expect them to be heard in public?

 

Will legal bloggers ‘keep the judge himself while trying under trial’ as Bentham envisaged of open court trials? It is a heavy duty on behalf of the rest of us, as envisaged by Bentham and Sir Mark Potter P.

A child’s understanding to instruct a solicitor direct

20160924_142217‘Sufficient understanding and intelligence’

 

In Re Z (A Child – Care Proceedings – Separate Representation) [2018] EWFC B57 (judgment: 29 June 2018), HHJ Bellamy sat in the Family Court and dealt with the wish of a 14 year old boy (Z) to instruct his own solicitor and to part company from his children’s guardian. The published judgment is ‘an abbreviated copy of my judgment’ which is ‘written for a very intelligent 14 year old’. It is the judgment of a circuit judge, so it may not be of direct citable authority. That is a subject for another day. For the present I shall treat a judgment from HHJ Bellamy as from a source on which any children lawyer is entitled to give respect; and to rely on as a precedent in a suitable case.

 

The judgement turns on FPR 2010 r 16.29(2) (text below) which raises the question of a child having the ability to instruct a solicitor direct. That principle is rooted in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224, where – of a child’s understanding and how it should be respected – Lord Scarman said (at [1986] 1 AC 112, 186 and [1986] 1 FLR 224, 251): ‘The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision…’. ‘Child’ here means a child under 18 of ‘sufficient understanding’ to instruct the child’s own solicitor (ie a ‘mature child’ or Gillick-competent).

 

I have not seen the other version of HHJ Bellamy’s judgment. In the version available, he deliberately leaves out most references to the law on which he bases his decision. It is not even referred to in foot-notes, which is a pity (the whole point of a foot note is to provide an occasional aside, so as not to interrupt the flow of the main text). I think I spotted a few of the references, but by no means all.

 

Z: seeing the judge and his understanding

 

Z was the subject of care proceedings after a rocky period in his life which included allegations of sexual abuse by his mother (some manufactured, but probably not all: the final hearing of the application was to be in August) and his grandmother whom he later went to live with. At the time of the judgment he was living again with his grand-parents. He knew exactly what he wanted to achieve – a return home, or to live with his grand-parents; but not with foster parents or in a therapeutic placement (as the local authority were likely to want). He had been referred to a psychiatrist who had filed an extensive report. He saw the judge who described the meeting as follows:

 

‘[27] Through his guardian and solicitor, Z asked to see me. With the agreement of all parties, I saw Z on 8th June in the presence of his guardian and solicitor. The meeting, though informal in style, took place in a court room and was recorded. The guardian also took a full note of our conversation. That note has been circulated to all parties. In our meeting, Z repeated many of the points made to the experts and to his solicitor and guardian.

[28] In conversation, Z comes across as extremely articulate and highly intelligent. He was neither emotional nor unduly emotive….’

 

Under a heading, ‘The law’ the judge sets out the majority of the duties of a children’s guardian (at [30]) and of Z’s solicitor (at [31]). At [32] the judge sets out ‘guidance given by senior judges’ on how to decide whether someone like Z ‘has sufficient understanding to instruct his solicitor directly’.

 

He summarises the decision he is asked to take:

 

‘[33] If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.’

 

The rule which deals with the judge’s decision and which I shall take to represent the law, is at FPR 2010 r 16.29(2) and (3):

 

(2) If a solicitor appointed as mentioned in paragraph (1) [ie appointed by the court in CA 1989 Pt 4 proceedings] considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

(3) The matters the solicitor must take into account for the purposes of paragraph (2) are –

(a) the views of the children’s guardian; and

(b) any direction given by the court to the children’s guardian concerning the part to be taken by the children’s guardian in the proceedings.

 

There is no reference in FPR 2010 r 16.29 to a referral back to the court as happened in Re Z. It is not possible to tell whether HHJ Bellamy was referred to Re CT below. Probably not: the case seems to have fallen out of use, but is still good law, as far as I know. However, the way he dealt with Z’s application seems to fit in with what Waite LJ said. A difference is that Re Z was CA 1989 Part 4 proceedings; whereas CT was Part 2, for a Section 8 order (ie for CT to go back to live with her natural family from her adoptive family). I think that is a distinction without a difference.

 

A child’s age and understanding and court proceedings

 

There are five separate areas where the issue of a child’s understanding in relation to children proceedings arises. The rules are opaque, even for a lawyer. The law and rules can only be found in different primary and delegated legislation. Lawyers get it wrong: see eg Black LJ as she was then in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 where – I think – she misunderstood the child representation law. Understandably she described it as ‘of complexity’ (see fuller explanation in Children’s Views and Evidence David Burrows (Bloomsbury, 2017)  at 6.88 and 6.116). If a children lawyer of Lady Black’s calibre can get the law wrong (as I think she did) and find it ‘of complexity’, what chances have the rest of us; and especially how can children expect to understand what is going on?

 

The five separate categories of the procedural jungle which is this part of children law are:

 

  • Where a child wants to take her own proceedings (as eg did CT in Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, sub nom Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, CA: Sir Thomas Bingham MR Staughton and Waite LJ) considered below. The starting point is CA 1989 s 10(8): application where a child must have permission from the court if the court is ‘satisfied that s/he has sufficient understanding’; though FPR 2010 r 16.6(3) says, as explained in CT (above), that the law mostly leaves the decision to the child’s solicitor).
  • A child wants to have a say – be heard by the court – in proceedings to which she is subject, eg that her of his parents are taking proceedings about where they are to live (see eg Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011; and see FPR 2010 r 16.4).
  • A mature child is a party to CA 1989 Pt 4 (eg care) proceedings (as they will be) the child almost always has a solicitor (CA 1989 s 41(3)). If the child wants to part company with the child’s children’s guardian because, say, the child has different views from the guardian as to the outcome of the proceedings (as with Z) FPR 2010 r 16.29(2)(a) says the solicitor ‘must conduct the proceedings’ as instructed by the child. It is the solicitor who ‘considers’ and ‘has regard’ to the child’s understanding (see Re CT again).
  • A child subject to a care order (like W in Re W (above)) where she or he wants to apply to discharge the order or for some other order in the care proceedings: at that stage the child has a solicitor so should not need a children’s guardian (perhaps; and see CA 1989 s 41(3)). For the recovery order proceedings in Re W, they are not specified proceedings anyway so a guardian should not have been appointed anyway.
  • Assessment of a child’s views in child abduction proceedings; and whether this should be done after the child (perhaps even as young as seven: Re D (above)) with the child as a party and with the child’s own solicitor.

 

Sufficient understanding to give instructions to a solicitor

 

Assessment of a child’s understanding, and therefore of their ability to take part in proceedings, is not easy. Solicitors are not trained for the job. The legal aid scheme is unlikely to permit wall-to-wall opinion evidence for each mature child (though a child with particular vulnerability will be appropriate for assessment: see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (28 June 2018), Cobb J). But what does the law and the rules say about assessment of understanding by the lawyers?

 

Whatever solicitors may think, or courts wish to order, the first assessment in categories (1)-(4) is the job of the solicitor; though as Waite LJ explained in Re CT, is the final arbiter is still the court. Waite LJ explained that the normal way for a child to proceed in civil proceedings would be by a guardian or next friend (now CPR 1998 r 21.2); but that FPR 1991 r 9.2A (as it then was; now r 16.6) had introduced an exception to that principle in certain specific instances. He defined these as follows for CA 1989 Part 2 applications (ie categories (1) and (2)):

 

‘(1)Where the court has given leave at the outset for a minor to begin or defend proceedings without a next friend or guardian ad litem. Such leave is only to be granted if the court considers that ‘the minor concerned has sufficient understanding to participate as a party in the proceedings . . . without a next friend or guardian ad litem’ (r 9.2A(1)(a), (6) [now r 16.6(3)(a) and (6)]).

(2)Where a minor has a next friend or guardian ad litem in proceedings that are already on foot and applies successfully for leave to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem. Leave for that purpose is only to be granted if the court reaches the same conclusion as in case (1) (r 9.2A(4),(6) [r 16.6(5)]).

(3)Where a solicitor has accepted instructions from the minor to act in the proceedings, and where that solicitor ‘considers that the minor is able, having regard to his understanding, to give instructions in relation to the proceedings’ (r 9.2A(1)(b)(i),(ii) [r 16.6(3)(b)]).’

 

So said Waite LJ: who was to assess the child’s ‘understanding’: the court or the solicitor? He continued (at 288) of judging CT’s understanding:

 

‘I have stressed that there has not so far been any suggestion that Mr Burrows [yes, me] is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that CT is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge – and for that matter to other judges who may find themselves confronted with a similar situation – simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions?’

 

The court’s ‘ultimate right to decide’

 

He concluded that the court should have the ‘ultimate right to decide’; but, said Sir Thomas Bingham MR, ‘the solicitor’s judgment is to be respected and given great weight’ (at 291). In practice, therefore, the court is only likely to become involved as final arbiter if the solicitor has doubts or if another party, on good grounds, questions the solicitor’s discharge of her or his duties in representation of a child.

 

This is the criterion – solicitor’s view of the child’s understanding, first; and arbitrement by the court is the solicitor is unsure of his or her view, or someone challenges – which applies in Part 2 proceedings (Re CT). The similarity between r 16.3(3)(b) (Part 2 proceedings) and r 16.29(2)(a) (Part 4 proceedings) on the question of understanding is close. Re CT provides the common law approach to how the understanding should be tested by the courts, and in what circumstances, in Part 2 and Part 4 proceedings (categories (1)-(4) in the list above).

 

Better still, the whole area of child representation procedure and its rules should respect children. They should have a procedural law which from a highly experienced children judge down to the moderately intelligent child (with us lawyers in between) – yes, we should have law which all of us can understand.

The mediator and suspicions of harm to a child

20160419_174504

‘Sharing’ of information about a mature child

 

There is a poor alignment between what the law explained by House of Lords says to doctors and others on confidentiality for mature children – children of ‘age and understanding’: per Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – and what government guidance (eg Working Together 2015) says, especially to local authority staff (social workers, teachers etc). The law as explained by House of Lords in Gillick is still good law; and it trumps the guidance. If that is right then some of the guidance is wrong.

 

As an example, imagine that a child Angela, aged 15, tells her teacher Mrs Josselin (J) of things that are going on at home. She talks of excessive chastisement and other punishment that her step-father Steven Martin (M) has inflicted on her. The teacher listens, says little; but makes full notes of what she has been told immediately after Angela has spoken to her. Angela asks her teacher to tell no one; and especially to say nothing to her mother or M.

 

J speaks to her head-teacher. They feel they are bound by the guidance in Working Together 2018, and its stress on ‘sharing information’ (by which it means passing on information) such as:

 

‘24. Practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks or concerns about the safety and welfare of children, whether this is when problems are first emerging, or where a child is already known to local authority children’s social care (e.g. they are being supported as a child in need or have a child protection plan). Practitioners should be alert to sharing important information about any adults with whom that child has contact, which may impact the child’s safety or welfare.’

 

The school has had a number of concerns about Angela over the previous 18 months before. The head tells a social worker, and the social worker tells the police. The local authority looks into what has happened. Angela refuses to be interviewed further about what she told J; but J’s notes are passed to the local authority. No-one tells the parents what Angela has told the teacher and which sparked off the most recent enquiry.

 

Care proceedings follow; and the question of how Angela’s information in J’s notes is to be disclosed to the court, will be an issue – as, on that subject, will be the conflict in the law between the confidence in the information between Angela and the teacher. These questions are for another day.

 

Mediation and Angela: code of practice

 

Suppose the same information from Angela was passed on to a mediator, Jim Dixon (D). What are the mediator’s duties: (1) under any guidance or code of practice; and (2) in law (if different)? A mediator’s code of practice, from the Family Mediation Council (Code of Practice for Family Mediators May 2018) includes the following in relation to children:

 

‘5.2.2 Where it appears necessary so that a specific allegation that a child has suffered significant harm may be properly investigated, or where the Mediator suspects that a child is suffering or is likely to suffer significant harm, the Mediator must ensure that the appropriate agency or authority is notified. Wherever possible, the Mediator should make such a notification after consultation with his or her PPC.’

 

What follows deals only with children of age and understanding (Gillick-competent). For them and their confidentiality (or European Convention 1950 Art 8 rights to respect for their private life) para 5.2.2 comes in a passage headed ‘Confidentiality’. Uncontroversially, the previous paragraph (5.2.1) says (subject to 5.2.2):

 

‘… The Mediator must not disclose any information about, or obtained in the course of an Information and Assessment Meeting or during a mediation process to the other participant or to anyone including a court appointed officer or the court, without the express consent of each Participant, an order of the court or where the law imposes an overriding obligation of disclosure on Mediators to do so.’

 

The mediation process is entirely confidential, and only the parties (including any child) can waive confidentiality (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J). Unlike legal professional privilege, confidentiality can be overridden if a higher interest demands (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] UKHL 6, [1987] WLR 776, (Spycatcher case) per Lord Goff at 281).

 

Law and the Gillick-competent child

 

So what says the law (as opposed to guidance or practice codes) about the position of the mediator. The starting point for advice for D (the mediator) is that for a girl of her age – in the absence of mental incapacity (see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, Cobb J) – she is entitled to have her confidentiality respected (Gillick (above)). Gillick, after all, was specifically about confidentiality (a doctor’s position in relation to confidences, as to which, for modern guidance to doctors, see GMC Guidance on confidentiality ). What is said by House of Lords is a higher version of the law than government guidance.

 

The ‘guidance’ in Working Together 2018, is a lesser version of the law than Gillick. To the extent that it, and the mediation guide, promotes ‘sharing’ where a mature child’s confidences should be respected it is, surely, wrong?

Court documents: Part 4 – documents for media and non-parties in family proceedings

20160419_173301Hearing documents for non-parties

 

Finally this series applies the law, as so far defined, to non-parties and family proceedings. Part 1 considered who may attend family courts (in addition to the parties, their representatives etc). Part 2 deals with the open court principle and its importance for documents for non-parties. Part 3 dealt with the recent case on this subject especially Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’). This Part looks at how the law, as explained in the first three Parts, applies to documents and to non-parties in family proceedings: first, how it applies to non-parties who attend private family hearings; or, secondly, to those who may want to know more about such cases afterwards (eg journalists, lawyers, academics or family members – even perhaps a child involved, as the child gets older).

 

In this series, documents are categorised as:

 

  • Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
  • Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
  • Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules and any order of the court.
  • Trial documents – Documents prepared for the judge and at a court hearing.

 

Family Procedure Rules 2010 (FPR 2010) does not deal with the subject of release of documents beyond r 29.12 which permits inspection (ie photocopying on payment of an appropriate fee) of documents with permission of the court. This is likely to be dealt with at common law and in the inherent jurisdiction of the court as defined by Hamblen LJ in Cape Intermediate v Dring.

 

Family proceedings courts

 

As stressed in Part 1 there are three categories of family courts hearing to which the question of release of documents to non-parties applies. Each is likely to involve application of the law of the law in different ways, though exactly how has not been clearly defined. The categories of hearing are:

 

  • Open court hearings (eg divorce, committal proceedings, domestic abuse cases under Family Law Act 1996 Part 4). Open justice principles apply to these hearings and the same rules are likely to apply as explained in Cape Intermediate v Dring.
  • Hearings in private where media representatives and other can attend (r 27.11(2)(f)-(g)): so long as anonymity is preserved the Cape Intermediate rules could apply.
  • Other hearings in private (see eg Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 56).

 

Part 3 sets out the documents which non-parties can expect to see in civil – ie almost invariably, open court – proceedings. What should non-parties expect to see in private family hearings? Do the same rules, subject to privacy/publication restrictions, apply for non-parties who attend family courts under r 27.11(2)(f)-(g)?

 

Release of documents in private family court hearings

 

Privacy and publication restrictions in family proceedings centre on two strands in law:

 

  • The common law position as summarised in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 and succeeding case law; and
  • Statutory contempt proceedings in relation to certain types of case, notably children cases, in Administration of Justice Act 1960 s 12(1), namely:

‘12 Publication of information relating to proceedings in private

(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 [case of children proceedings]…’

 

Any restriction must be judged against the common law open justice principle. Because the parties do not want material released to non-parties does not mean that the court should not give permission for inspection, whether at common law or under r 29.12. Munby J emphasised this in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416 when he said:

 

‘[44] The fact that both parties join in making the application is not, of course, any reason why the application should succeed. If anything, quite the contrary – see the observation of Sir Christopher Staughton in Ex parte P (1998) The Times, 31 March, quoted with approval by Lord Woolf MR in R v Legal Aid Board ex parte Kaim Todner [1999] QB 966, [1998] 3 WLR 925…: “When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.”’

 

What is quite clear is that the law permits release to the media and others of documents in Family Law Act 1996 Pt 4 (non-molestation and occupation orders) as explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 whatever FPR 2010 r 29.12 might say: a rule cannot alter the common law (British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628).

 

Documents for release under the court’s inherent jurisdiction

 

In Cape Intermediate v Dring (as further explained in Part 3) Hamblen LJ defines the documents which the court has an inherent jurisdiction to consider for release to non-parties (ie beyond its powers in CPR 1998 r 5.4C). These are the following:

 

  • Skeleton arguments and ‘other advocates documents provided’ to assist the court ([92]).
  • Witness statements: under CPR 1998 r 32.13 non-parties are entitled to inspect witness statements. There is no equivalent rule in FPR 2010; but r 32.13 may be said to summarise the position at common law.
  • Experts reports: the same applies as for expert’s reports ([96]); but –
  • Documents read or treated as read in court – CPR 1998 r 31.22 ([101]).
  • Other documents to meet the open justice principle ([110]).

 

As explained in Part 3 the cases considered there are likely to be authority for a prohibition on release of the court bundle in full, and of exhibits to statements and reports (even where such exhibits are referred to).

 

Why should material be released?

 

If the criterion for exercise of its jurisdiction by the family courts is to enable those who attend court to understand the proceedings then, subject to non-parties’ compliance with privacy restrictions (eg Administration of Justice Act 1960 s 12(1)), the question must be: why should not the non-parties have access to documents to enable them to understand what is happening. Release of the Cape Intermediate v Dring list of types of document must, in most family cases, go a long way to telling a non-party what is going on; or telling a non-party looking into the case, who has also read any judgement (anonymised in family cases), what happened.

 

This will enable courts in most cases to pay full regard to the words of Lord Woolf MR (italicised above), and to what was said by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (cited by Hamblen LJ at [85]):

 

‘[83] The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 Lord Bingham referred to the need to give appropriate weight both to efficiency and to openness of justice as the court’s practice develops. He observed that public access to documents referred to in open court might be necessary. In my view the time has come for the courts to acknowledge that in some cases it is indeed necessary.’

 

If the common law permits release to non-parties of documents for civil proceedings, the family courts will need to answer, surely, why they should not do the same for non-parties who are permitted to attend private court hearings? (The case has surely been made for Family Law Act 1996 Pt 4 cases (see Clibbery v Allan (above)?) Perhaps the same applies, for those non-parties who, for good reason (per Guardian News), want to see material listed by Hamblen LJ after a hearing.