Special measures in family proceedings: Part 2

Children and vulnerable witnesses: YJCEA 1999 Pt and ABE guidance

 

The first article in this series of two dealt with where special provision might be appropriate for children and vulnerable witnesses in family proceedings and how, procedurally, that might be dealt with. This article looks at the type of measure which the court might provide for such witnesses in family proceedings, and these are dealt with in common law and under statutory provision. As mentioned at the end of this article, the funding of assessment for, and operation of, such measures is not something the Lord Chancellor and his Ministry of Justice seems yet to have put its mind to.

 

As Lady Hale explained in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 the existing common law remedies are, for the most part, summarised and authoritatively set out in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2. The 1999 Act and its supporting ABE guidance set out the respective definitions of vulnerable and intimidated witnesses (ss 16 and 17, and including children under 18). They explain the ‘special measures’ available under the Act and at common law to help witnesses give their best evidence set out in YJCEA 1999 ss 23-30 (as explained below). An abbreviated version of ‘measures’ for vulnerable adults (only) in family proceedings appears in FPR 2010 r 3A.8(1).

 

Divergence from the general rule for giving evidence in family proceedings and the call for ‘control’ (or where Pt 3A applies, a participation direction) arises from the extent to which the court directs measures (as summarised in the table below) to help vulnerable witness to maximise the quality of their evidence.

 

‘Control’, measures and divergence from a general rule

 

The criterion for the court in diverging from the general rule and in directing any special measure relates to maximising quality of a vulnerable witness’s evidence. The common law has long had a variety of measures available to it (see Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR at [19]). To avoid the ‘normal… of court-room confrontation’ and to maximise the quality of a witness’s evidence Lady Hale described common law measures in family proceedings (‘long more flexible than other proceedings in this respect’ (sic)) in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (Lady Hale at [36]):

 

  • Hearsay evidence (and see Civil Evidence Act 1995; FPR 2010 Pt 23)
  • ‘accounts in videotaped conversations with specially trained police officers or social workers’ which can be ‘extended to other vulnerable witnesses’; and ‘could include the facility to have specific questions put to the witness at the request of the parties’.
  • ‘oral questioning… which did not involve face to face confrontation’.

 

Terminology in relation to children and vulnerable witnesses is derived from YJCEA 1999 (mostly in ss 16 and 17): children and adults defined as eligible for assistance. A case management direction for a ‘special measure’ (and much the same can apply for family proceedings for vulnerable witnesses outside Part 3A) and a participation direction (FPR 2010 r 3A.8(1)). The terminology in YJCEA 1999 Pt 2 is explained in Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice (‘ABE guidance’); and procedurally, for criminal proceedings, ‘special measures’ is dealt with in Criminal Procedure Rules 2015 Pt 18 and its practice directions.

 

‘Control’ under r 22.1(1)(c) (set out in first article) depends on which of the measures available to the courts judges and magistrates allow. Screens have long been permitted in court proceedings.

 

‘Special measures’ and ABE guidance

 

The ABE guidance sets out and discusses use of the various ‘special measures’ available under YJCEA 1999 ss 23 to 30 (at paras 5.2 to 5.8); and application for witness anonymity at para 5.12. The ‘special measures’ available for direction under YJCEA 1999 s 18(1)(a) are:

 

(1) preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);

(2) allowing a witness to give evidence by live link (s 24; ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));

(3) hearing a witness’s evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);

(4) video recorded evidence (s 27);

(5) questioning a witness through an intermediary (s 29);

(6) using a device to help a witness (eg because deaf or mute) to communicate (s 30).

 

Table: measures for evidence of vulnerable witnesses and children

Measure Rule 3.8A Other source
Screen to prevent witness seeing, or being seen, a party (1)(a) YJCEA 1999 s 23; ABE guidance para B.9.1
Live-link (video-link or conferencing) for evidence and cross-examination (1)(b) FPR 2010 r 22.3 and PD22A; YJCEA 1999 s 24; ABE B.9.4
Hearing a witness in private YJCEA 1999 s 25; ABE B.9.12
Video-recorded evidence YJCEA 1999 s 27; ABE B.9.17
Assistance of an intermediary (1)(e) YJCEA 1999 s 29; ABE B.9.29; Criminal Procedure Rules 2015 Pt 18 and PD I F
Aids to communication (1)(c) YJCEA 1999 s 30; ABE B.9.38
Cross-examination by pre-written questions MFPA 1984 s 38G(6); H v D [2017] (below)
Hearsay evidence FPR 2010 r 23.2
Judge/court assistance with examination of witness MFPA 1984 s 38G(6)

 

Measures for assistance of vulnerable or intimidated witnesses

 

Notes on these measures for children and vulnerable witnesses follow:

 

  • Evidence by live-link (‘video link’ or ‘video conferencing’) is provided for in family proceedings (r 22.3; and see Annex 3 to PD22A). This is explained more fully in the Police Guidance at para 5.7.2 and in ABE Guidance at para B.9.4. The witness’s evidence is relayed live into the court-room while he or she is in another room or out of the court altogether. They are away from the presence of the party whose presence may be thought to intimidate them. Directions could be made for this evidence to be heard at a different location (from the court) and on a different occasion from any final hearing (FPR 2010 r 4.1(3)(f); for special arrangements for a child to be asked questions on behalf of a defendant see R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157).

 

  • Video-recorded interviews are to be distinguished from ‘live-link’ evidence. Subject to court direction they can be used to provide evidence in chief, if the interview has been properly conducted; or sufficiently properly conducted (Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J). Their use in children proceedings is already well-known and frequently used in children proceedings. If the video interview is the evidence in chief, permission from the court will be required to dispense with a statement from the witness/party (r 22.6(1)).

 

  • Cross-examination by pre-written questions – Questions in place of cross-examination may be by list submitted to the judge in advance; and may be directed as part of case management (H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J; and see MFPA 1984 s 31G(6)).

 

  • Hearing a witness in private – That some family hearings are in open court (eg divorce and some FLA 1996 Pt 4 (domestic abuse) and FGM proceedings) recalls that the hearing of a vulnerable witness in such cases may be called for.

 

  • Assistance with communication – eg for deaf or mute witnesses.

 

  • Intermediaries – Assistance from an intermediary is considered by ABE Guidance B.9.29-37; but is dealt with relatively fully in the practice direction to Criminal Procedure Rules 2015 at CPD I which includes (at paras 3F.1 and 3F.2) the following on the ‘Role and functions of intermediaries’:
  • Intermediaries are independent of parties and owe their duty to the court. The court and parties should be vigilant to ensure they act impartially and their assistance to witnesses and defendants is transparent.
  • Intermediaries facilitate communication with witnesses and defendants who have communication needs.
  • Their primary function is to improve the quality of evidence and aid understanding between the court, the advocates and the witness or party to proceedings (eg they often advise on the formulation of questions so as to avoid misunderstanding)
  • They may actively assist and intervene during questioning. The extent to which they do so (if at all) depends on factors such as the communication needs of the witness and skills of the advocates in adapting meet a witness’s needs.

 

Making the measures effective: witness assessment and funding

 

The court has power to order these measures, whether at common law or under Part 3A. There are two fundamental conditions precedent to any special measures (or ‘participation’) direction: (1) assessment and (2) funding. Neither of these has been thought through by HM Courts and Tribunal Service and the rule-makers. The latter have no power over to deal with funds, but before setting out the rules they might have given funding some thought. All the litigant gets on the subject is the redundant and thoroughly charmless (no-one who understands the law would imagine a family proceedings rule could provide funding for litigation) r 3A.8(4):

 

(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.

 

Cost to HM Courts and Tribunal Service remains an issue while conferencing facilities and other necessary IT equipment are elusive. Whether HMCTS are amenable to judicial review for failing to fund special measures in individual cases remains a subject for further research.

 

Assessment of a witness must precede any direction for special measures. This may be by the court doing the best it can, which is hardly good enough; or, subject to any funding (again…; and for assessment questions, see eg Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam) Cobb J (assessment of understanding to consent to adoption of a child mother with learning difficulties); and see Family law: capacity to consent, this may be – must be? – done professionally.

 

Whatever may be the course available to the party who wishes to call the witness – for unlike in criminal proceedings where CPS can fund assessments and certain special measures – the assessment must be done with care, as explained by Sir Ernest Ryder, Senior President of Appeals, in the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. For example the court must be aware of:

  • The way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and
  • The importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done).

 

Professional assistance must be required; but in private law proceedings who is going to pay; and that is before the question of the cost of IT, equipment for recording evidence (eg of children or victims of domestic abuse), court video equipment (surely cannot be very expensive?), fees for an intermediary and so on is even touched upon. At least one YJCEA 1999 ‘special measure’ available in open court proceedings – namely, getting judges and advocates to take off their gowns and wigs (for advocates who wear wigs) while children or vulnerable witnesses give evidence (YJCEA 1999 s 26) – is free….

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Best evidence of vulnerable witnesses: Part 1

Intimidated witnesses in family proceedings

 

This first article (in a series of two) considers the evidence of any witness in family proceedings who diverges from the general procedural rules (as explained below) for evidence in family proceedings. It concerns evidence from:

 

  • witnesses and parties who are adult and of full capacity, but whose evidence may be in some way be ‘diminished by [their] vulnerability’ (Family Procedure Rules 2010 (FPR 2010) rr 3A.4(1) and 3A.5(1));
  • children who give evidence in their own or others’ cases (and see Children’s views and evidence , David Burrows (Bloomsbury Professional, 2017);
  • witnesses who are protected parties or otherwise lack mental capacity; and
  • witnesses with learning difficulties.

 

Each of these categories of witness may be entitled to special measures directed by the court. Such measures may also, in some cases, be one of  the ‘measures’ available after the court has made a participation direction under FPR 2010 r 3A.8 and in accordance with the recently introduced FPR 2010 Pt 3.

 

The evidence of vulnerable witnesses – as the above witnesses tend to be categorised by legislators and rule-makers – will be dealt with in two articles. The first will set the scene for circumstances in which the court may order assistance for children and vulnerable witnesses by ‘control’ of the way the evidence is put before the court. The second will look at the measures available to the courts at common law and within the rules to provide this assistance (‘special measures’ or ‘measures’).

 

It is worth recording here of court rules: that creation of law (such as the power of any court to direct a special measure) can only be done by common law or statute. That is to say a rule (such as FPR 2010 Pt 3A) cannot create law (unless permitted by statute to do so: see eg Senior Courts Act 1981 s 51(1) on civil proceedings costs rules). It can only regulate its procedure (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75). This was asserted crisply – in this case in relation CPR 1998 – by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933:

 

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: Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

This article will therefore stress the extent to which practitioners and parties must rely on common law and statute (ie primary law), not on any rule alone, save where that rule represents – as does FPR 2010 Part 3A.8(1) – existing primary law.

 

New rules; but no funding…

 

However, as the second article in this series concludes, little headway will be made with any of this in family proceedings till its funding is resolved. This is needed, plainly, for all but the richest of parties: first to provide special measures with cost implications (intermediaries, video-link etc); and, second, for expenses of the parties for assessment of vulnerability and of the cost of any special measure. There is no offer from Ministry of Justice (which also funds Legal Aid Agency) that the extra expense inevitable in a court assessment of vulnerability and order that a special measure be directed will be met – as needed: ie in most cases – by the tax payer.

 

FPR 2010 Pt 3A (entitled ‘Vulnerable persons: participation in proceedings and giving evidence’ supported by a practice direction PD3AA) came into operation on 27 November 2017. It is limited to adult witness the quality of whose evidence may be ‘diminished’ by their vulnerability; by their lacking mental capacity or being a ‘protected party’ (per FPR 2010 Pt 15); or their suffering learning difficulties. This article casts the vulnerable witnesses net much wider than is provided for by Part 3A.

 

Measures: ‘control’ of evidence in family proceedings

 

Evidence in family proceedings is controlled by FPR 2010 r 22.1 (which is derived directly from Civil Procedure Rules 1998 r 32.1) and by certain provisions in the case management rules (FPR 2010 rr 1.4 and 4.1). These together give family courts the power to ‘control evidence’ and in particularly to give directions as to how evidence to be adduced before a family court, considerably beyond what is available in FPR 2010 Pt 3A, which, anyway, applies only to adults and suggests that only a limited pallet of measures is available to judges and magistrates. Part 3A, for example, makes no provision for the common law remedies referred to by Lady Hale in Re A (at [36] below).

 

Specifically, in terms of control of evidence, FPR 2010 r 22.1 is as follows:

 

22.1 Power of court to control evidence

(1) The court may control the evidence by giving directions as to –…

(c) the way in which the evidence is to be placed before the court.

 

If a witness is found to be vulnerable – a child or one of the classes of witness referred to at the beginning of this article, they may be eligible for assistance by direction from the court, known as ‘measures’ or, in the language of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2 and earlier common law, from which many of the assistance ideas derive, ‘special measures’ (YJCEA 1999 ss 23-30). Such special measures are widely used in criminal proceedings. Though available in family proceedings (see comments of Lady Hale in Re A (below)) they are rarely used. To an extent (see Table in Part 2 (below)) they have now been proposed for vulnerable adults; whilst evidence from children still depends on common law as represented by YJCEA 1999 Pt 2.

 

Achieving Best Evidence

 

One of the principal sources for operation of the common law in family proceedings is replication of the measures available under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2; though already Family Procedure Rules 2010 (FPR 2010) r 22.3 provides, as does YJCEA 1999 ss 24 and 27. Evidence under YJCEA 1999 for children and vulnerable and intimidated witnesses is explained by Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice (‘ABE guidance’); and a guide for those collecting evidence from children and vulnerable witnesses is provided by Vulnerable and Intimidated Witnesses A Police Service Guide, March 2011, Ministry of Justice.

 

The procedures set out in Achieving Best Evidence have been commended by Supreme Court and again by Court of Appeal and Family Division judges. For example, in a passage quoted by McFarlane LJ in Re E (Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675, [2016] 4 WLR 105 at [47] and [48], Lady Hale said of children’s evidence:

 

[27] But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom…. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy.

 

Direct cross-examination (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157) is not essential, so long as questions are fairly put to a child witness (this requirement is available now, regardless of Part 3A; and could be copied in adult proceedings: see eg H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J). Lady Hale continued:

 

[28] … The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot. Another is cross-­examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.’

 

Vulnerable witness and the common law

 

Re W and Re E dealt with a child’s evidence. Achieving Best Evidence applies equally to all ‘victims and witnesses’ – child and adult alike – who may be entitled to help to achieve their best evidence by measures available to the common law and FPR 2010. Of a vulnerable adult witness (‘X’) in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 Lady Hale said:

 

[36] It does not follow [from her directing that X should give evidence], however, that X will have to give evidence in person in these proceedings.… If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….

 

Alternatively questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness. Lady Hale continued:

 

[36] … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.

 

Court’s power to ‘control the evidence’: the general rule

 

The objects of FPR 2010 r 22.1(1)(c) and Part 3A together are, in relation to evidence generically, to control – or alter from the general rules for adducing of evidence – how the evidence (‘participation’ per r 3A.4 is not in question here) of a particular witness is put before the court. The general rule (which can be diverged from by order of the court: r 22.1(3)) is as follows:

 

  • Evidence is oral at a final hearing before the judge or magistrates (r 22.2(1)(a)), subject to the witness’s statement having been served by the party calling him or her (r 22.4(1)). The statement is treated as the witness’s evidence in chief (r 22.6(2)).
  • The witness must be available in court in person for cross-examination.
  • Other than at a final hearing, evidence is in writing only (r 22.2(1)(b), 22.7(1)) but application can be made for cross-examination of a witness (r 22.8(1)).

 

Anything which diverges from this for a witness or party who is to give evidence and who is vulnerable, can only be by direction of the court under FPR 2010 rr 22.1(1)(c) or as a ‘measure’ under r 3A.8. This is dealt with under common law as set down and summarised, to a degree, in YJCEA 1999 Pt and FPR 2010 Pt 3. That direction is likely to be for a special measure to assist the witness (subject to funding any expense of assessment for, and provision of, the measure); and will be dealt with in the next part of this article.

Intractable contact disputes

 

ENFORCEMENT OF PARENTAL CONTACT

 

Contact difficulties and Children Act 1989

 

Failure of contact (sometimes extending to what is called ‘parental alienation’) is indicative of a problem in a family where the parent’s relationship has already broken down. The law can only help as a last resort. Powers are there to provide for, and to enforce disobedience to, contact orders in Children Act 1989 (CA 1989) ss 11A-11P; though how often are these powers used in practice?

 

Since April 2014 orders for contact (known as ‘child access’ before CA 1989) have become known with certain other children orders as ‘child arrangements order’. This article is concerned with ‘contact’ – ie how much the parent with whom the children are not living mostly will see the children. On occasions the term ‘contact’ will be used for the sake of clarity where CA 1989 tends slightly to obfuscate the subjects by using ‘child arrangements order’.

 

Where the law seeks to help, it must try to do so efficiently and without delay; though it can only do so where the parties or their advisers apply promptly, where other attempts to resolve the issue have failed. The speed of response of the courts depends entirely on HMCTS. Amendments to CA 1989 ss 11A-11P (considered below) can bolster enforcement arrangements; but they cannot directly influence the speed of response of the courts and Cafcass.

 

Children’s view and rights

 

Children can make their own applications in appropriate circumstances and their representation and involvement in contact disputes may be a feature which will develop. Family Procedure Rules 2010 (FPR 2010) Part 16 includes provision for children applications (with court permission) and representation of children; and Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 reminds all parties, practitioners, judges and Cafcass officers – so far as they need reminding – that the views of children must be ‘taken into consideration on matters which concern them in accordance with their age and maturity’ (Art 24.1). Further Art 24.3 asserts – as concerns this article:

 

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

Gender stereo-typing is difficult to avoid. It will be assumed that the child(ren) are living predominantly with the mother and that a father (or other person with permission from the court: eg a grand-parent) wants contact; though it may easily be a father with whom children are living. If contact is restricted or prevented it will therefore be the mother who is alienated; but mothers who do not have the children with them may as easily find themselves obstructed in their contact.

 

No order principle; and enforcement

 

CA 1989 s 1(5) introduced to children proceedings the concept of the no order principle: the court should only make an order if to do so is ‘better for the child than making no order’. If any order is to be made it must be because it is assumed that it will be obeyed; and if not obeyed, that it will be capable of being enforced.

 

The making of a contact order in the first instance is subject to the welfare principles in CA s 1 and to the s 1(3) checklist; though it will be seen that there are points in the contact enforcement provisions where the child’s welfare is but one factor for the court to consider.

 

Where the court is considering whether to make a child arrangements order the s 1(3) check-list applies (as relevant):

 

(3) … a court shall have regard in particular to –

  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • his physical, emotional and educational needs;
  • the likely effect on him of any change in his circumstances;
  • his age, sex, background and any characteristics of his which the court considers relevant;
  • any harm which he has suffered or is at risk of suffering;
  • how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
  • the range of powers available to the court under this Act in the proceedings in question.

 

In dealing with an application under CA 1989 s 8 – in this case a contact order – the check-list must always be born in mind. Factors within it will be relevant to every contact application, some more than others. And where the issue is relatively simple the child may have a relevant view or understanding of the issues, even though his/her age is modest (s 1(3)(a)).

 

Presumption of ‘involvement’

 

Since April 2014 Children and Families Act 2014 has added to previous relative clarity of CA 1989 s 1 the following in relation to the making of a child arrangements order and in relation to parents’ involvement in their child’s lives:

 

(2A) A court [must] presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) … ‘Involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

 

That is to say, ‘involvement’ means involvement of any kind, whether direct or not; and does not imply any particular amount of time or other involvement. The extent to which the court takes account of its enforcement powers under CA 1989 ss 11A-11P must be influenced by s 1(2A) (above) and the general presumption that parental involvement with a child will ‘further [that] child’s welfare’.

 

Children Act 1989 s 11(7)

 

Orders for a parent to see their child are made under CA 1989 s 8 (ie child arrangements orders, and for present purposes contact orders). Such orders may be subject to conditions under CA 1989 s 11(7), which – as it applies here – is as follows:

 

(7) A section 8 order may –

  • contain directions about how it is to be carried into effect;
  • impose conditions which must be complied with by any person –
    • in whose favour the order is made;
    • who is a parent of the child concerned;
    • who is not a parent of his but who has parental responsibility for him; or
    • with whom the child is living,

and to whom the conditions are expressed to apply;

(c) be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;

(d) make such incidental, supplemental or consequential provision as the court thinks fit.

 

This sub-section needs a little untangling:

 

  • It states that a children order – including a contact order – can contain directions imposed by a judge as to how the order is to be made effective (s 11(7)(a));
  • These conditions may be addressed to, and must be complied with by, the people listed in s 11(7)(b) such as the person who is to have contact ((i) – ie the first category) or the person with whom the child is living (iv); and
  • The order or conditions upon it may have a period specified by the court (s 11(7)(c)).

 

‘Any person’ may be the subject of s 11(7) conditions – eg the child or a friend or relative of one or other parent. Their party status may need to be considered if a non-party is made subject to conditions: that is to say if someone who is not already a party to the proceedings (eg one of the parents) then if conditions may have to be enforced against them it would be usual to join them as a party in the case. This sub-section, in theory, gives almost unlimited power to the court to impose conditions on a contact order; but in practice the more onerous the condition which is imposed, the more exceptional must be the case and the more carefully must the court’s reasons for it be.

 

The imposing of conditions may be on application or on the court’s initiative (ie the court decides to impose conditions because it decides independently of the parties to do so). They are imposed in the discretion of the judge (s 11(7)(d)) (ie the judge has a choice as to which course to take; though any course must be explained to the parties).

 

Warning notice on children orders

 

If the court makes or varies any contact order the court ‘is to’ (which means ‘must’) attach a ‘warning of the consequences of failing to comply with the … order’ (CA 1989 s 11I). FPR 2010 r 12.33 enables a party to apply for a warning notice to be attached; though given the mandatory nature of s 11I this might be thought unnecessary (or perhaps it applies only to orders made before the coming into operation of s 11I).

 

 

CONDITIONS ON CHILDREN ORDERS

 

Children Act 1989 ss 11A to 11P

 

CA 1989 new ss 11A-11P came into effect in December 2008. These provisions confer additional powers on the courts, when they are dealing with applications for contact orders. Since then a court has powers:

 

  • to impose directions and conditions on child arrangements order orders; and
  • to impose an enforcement order (s 11J(2)) or compensation order.

 

If a child arrangements order is made, and the court is clear that it has not been complied with, the court can make an enforcement order requiring the person who has to complied to carry out ‘an unpaid work requirement’ (CA 1989 s 11J(2))

 

The court may ask a Cafcass officer to monitor, or arrange for the monitoring of, a person’s compliance with an enforcement order, and to report to the court on failure to comply and on any unsuitability to undertake the unpaid work (s 11M).

 

If the terms of an enforcement order are breached, the court may (in certain circumstances) amend the original order to make it more onerous, or impose another enforcement order: Sch A1, Pt II. See also FPR 2010, PD12N.

 

Formerly CA 1989 enabled courts to impose ‘contact activity directions’ and ‘contact activity conditions’. The word ‘contact’ has been airbrushed out, but the exact sense of what the court can order has been diluted in the process.

 

Contact activity direction

 

Where the court makes a contact order, or orders variation or discharge of a contact order (s 11A(1)) in circumstances where there is a dispute as to arrangements for contact (as ‘regards the provision about contact that the court is considering whether to make in the proceedings’).

 

Where there is a contact dispute the court can make an ‘activity direction’ (formerly ‘contact activity direction’: CAD) (s 11A(2)). A CAD is ‘a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned’ (s 11A(3). For example (s 11A(5)) CADs can include:

 

  • programmes, classes and counselling or guidance sessions of a kind that –

(i) may assist a person as regards establishing, maintaining or improving contact with a child;

(ii) may, by addressing a person’s violent behaviour, enable or facilitate contact with a child;

  • sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.

 

In any decision as to whether to make a CAD ‘the welfare of the child concerned is to be the court’s paramount consideration’ (s 11A(9)). In Guidance to Cafcass practitioners on their roles in supporting the courts in their use of the s 11A (approved by the then President) specifically refers to three types of CAD:

 

  • Information meetings about mediation – provided by approved providers, free of charge to both parties if either party is publicly funded. Both parties will be required to participate, but can initially be seen separately;

 

  • Separated parents information programmes – provided by Cafcass-commissioned providers, typically involving group sessions lasting for a total of 4 hours, free of charge to all. Generally, both parties are required to participate, though the programmes can be delivered to them separately;

 

  • Domestic violence prevention programmes – run by Cafcass-commissioned providers, involving an intensive programme of 60 hours’ intervention. In practice it is quite possible that the Cafcass officer will have suggested to the court that participation in a contact activity might be beneficial.

 

So far it has not been possible to find out if this has been updated; though in the 2017 (current) Cafcass Operating Framework there is no obvious reference to CA 1989 ss 11A-11P or of monitoring contact orders under CA 1989 ss 11G or 11M.

 

Activity conditions

 

If the court makes a child arrangements order by s 11C(2) it:

 

… may impose, or the child arrangements order may be varied so as to impose, a condition (an ‘[activity condition’) requiring an individual falling within [s 11C(3)] to take part in an activity that promotes contact with the child concerned.

 

Those to whom an activity condition (formerly a ‘contact activity condition’: CAC) refers (s 11C(3)) are:

 

  • In relation to the contact order ‘the person with whom the child concerned lives or is to live;
  • ‘the person whose contact with the child concerned is provided for in that order’; or
  • ‘a person upon whom that order imposes a condition under section 11(7)( b).

 

The court may ask a Cafcass officer to monitor compliance with a CAD or CAC and to report to the court if there is a failure to comply (s 11H). The court may ask Cafcass to provide information about the impact, beneficial or otherwise, of attendance, in terms of helping to address the issues in the case.

 

Warning notices

 

If the court makes or varies a contact order, ‘it is to attach’ a notice (as already mentioned) which warns the parties of the consequences of failing to comply with the contact order (s 11I). Consequences may include:

 

  • an enforcement order (for unpaid work) (ss 11J–11N);
  • an order for financial compensation (ss 11 O–P), and
  • sanctions for contempt of court.

 

Careful drafting of the order is essential so that the words are such that compliance or not can be accurately defined, and so that the order can be enforced (for an example of an order which could not be enforced because of imprecision see The Solicitor General v J M J (Contempt) [2013] EWHC 2579 (Fam), [2014] 1 FLR 852, Sir James Munby P). For example:

 

‘at a time to be agreed each Saturday for 4 hours’, would be impossible to enforce

 

‘10 am on Saturdays to 4 pm on Sundays on alternate weekends starting on Saturday ….; F shall collect the child from [address] and M shall collect her for return.’ Failure to comply with this order should be relatively easy to define and confirm in evidence for enforcement of an order.

 

 

ENFORCEMENT OF ORDERS

 

Enforcement of contact orders under Children Act 1989

 

CA 1989 ss provide two new forms of order in connection with failure to comply with contact orders:

 

  • The ‘enforcement order’ under s 11J
  • ‘Compensation for financial loss’ under s 11O.

 

Existing rules and law as to committal for breach of a court order remain.

 

(1)       ENFORCEMENT ORDERS

 

Application for an enforcement orders

 

Where a child order is in force and the court ‘is satisfied beyond reasonable doubt that a person [(R)] has failed to comply with the contact order, it may make’ an ‘enforcement order’ (s 11J(2)). Application for an enforcement order is by the following (s 11J(5)):

 

  • the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
  • the person whose contact with the child concerned is provided for in the contact order;
  • any individual subject to a condition under section 11(7)( b) or a contact activity condition imposed by the contact order; or
  • the child concerned (see further below).

 

An enforcement order consists of ‘imposing on the person an unpaid work requirement’ (s 11J(2). CA 1989 Schedule A1 makes further provision about enforcement orders: the maximum number of hours of unpaid work that may be required is 200 and the minimum is 40. The court has power to amend or revoke an enforcement order; if terms of an enforcement order are breached, the court may (in certain circumstances) amend the original order to make it more onerous, or impose another enforcement order.

 

(2)       COMPENSATION FOR FINANCIAL LOSS

 

Application for compensation

 

Where ‘an individual [A] has failed to comply with the contact order’ (s 11O(2)(a)), and B has suffered financial loss ‘it may make an order requiring [A] to pay [to B,] compensation in respect of his financial loss’. B is a person in one of the categories defined in s 11J(5) (above); and where B claims to have suffered financial loss (s 11O(5)).

 

Section 11O(6) is in the same terms as s 11J(5) and defines the same list of applicants. In the unlikely event of a child suffering financial loss and seeking to apply for an order, he can only do so with permission of the court (s 11O(7) and (8)). In deciding how much compensation a respondent should pay the court must ‘take into account the [his/her] financial circumstances; and must ‘take into account the welfare of the child concerned’ (s 11O(14)).

 

Limits on making the orders

 

If R satisfies the court that s/he ‘had a reasonable excuse for failing to comply with the contact order’ the court ‘may not make an enforcement order’ (s 11J(3)). The burden is on R to establish that he had reasonable excuse; and the standard of proof is the balance of probabilities (s 11J(4)).

 

Similarly, the court may not make a compensation order if it is satisfied that the individual in breach ‘had a reasonable excuse for failing to comply with the contact order’ (s 11O(3)). The burden of proof is on ‘the individual claiming to have had a reasonable excuse’ (s 11O(4)).

 

Where the court makes either enforcement order, it must attach to the order a notice warning of the consequences of failing to comply with the order (s 11N).

 

Conditions on making an enforcement order

 

Before the court is permitted to make an order for enforcement for breach it ‘must be satisfied that –

 

  • ‘making the enforcement order proposed is necessary to secure the person’s compliance with the contact order’ (s 11L(1)(a)); and

 

  • ‘the likely effect … of the enforcement order proposed to be made is proportionate to the seriousness of the breach of the contact order’ (s 11L(1)(b)).

 

Before the court makes the order it

 

  • must ensure (‘satisfy itself’) that ‘provision for the person to work … can be made in the local justice area in which the person in breach resides or will reside’ (s 11L(2)).

 

  • ‘must obtain and consider information about the person and the likely effect of the enforcement order on him’ (s 11l(3)).

 

The court must ‘take into account the welfare of the child who is the subject of the contact order’ before it makes an order (s 11L(7)). In this instance the child’s welfare in this instance is not necessarily paramount.

 

 

CHILD APPLICATION FOR ENFORCEMENT

 

Child’s application to enforce

 

A child may apply for enforcement (s 11J(5)). If so s/he ‘must obtain the leave of the court before making such an application’ (s 11J(6)). Leave will only be granted to a child if the court ‘is satisfied that he has sufficient understanding to make the proposed application’ (s 11J(7)) (and see reference to Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 (above); and CA 1989 s 1(3)(a))).

 

It would appear that FPR 2010 r 16.6(3) (proceedings where a child does not need a guardian) applies:

 

  • the child seeks permission him/herself (r 16.6(3)(a))); or

 

  • the child has a solicitor and the solicitor considers the child to be of sufficient understanding to give instructions (r 16.6(3)(b); and see Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278 (child of age and understanding instructing a solicitor to act on her application for a s 8 order)).

 

Enforcement of orders: child does not wish to go

 

Where the parent’s obligation is to ‘allow’ contact and to ‘make [the child] available’ for contact, that wording does not place him in breach of the order if the child refuses to co-operate (Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others [2011] 1 FLR 1095). Before deciding that a parent is the source of a child’s resistance to contact so that he can be made the subject of a coercive order, the court must be sure that the parent is still in a position to reverse the child’s attitude.

 

A court may have to be prepared, if it comes to enforcement, to accept what might be thought to work originally – when the order was made – has turned out to be wrong: eg where the child has internalised the residential parent’s hostility so that punishing that parent could no longer produce the intended outcome and might produce the opposite.

 

 

COMMITTAL

 

Committal to prison for contempt

 

Application may be made for committal for contempt of a court order. Courts seem to be taking a firmer line on such applications than used to be the case (Re W (Family Proceedings: Applications) [2011] 1 FLR 2163; Doncaster MBC v Watson and Haigh [2012] 1 FLR 599). Applicants seeking a committal order must ensure that they follow all evidential and pleading rules are obeyed (Hussain v Hussain; Egeneonu v Egeneonu [2017] EWHC 2451 (Fam) (30 August 2017), MacDonald J).

 

Proof to justify committal is to the criminal standard: beyond reasonable doubt (see eg a recent committal application in child support proceedings: Gibbons v CMEC; Karoonian v CMEC [2012] EWCA Civ 1379; Iqbal v Iqbal [2017] EWCA Civ 19).

 

Where the respondent’s breach is an active breach that directly strikes at the heart of what the court ordered, it may be appropriate to impose a custodial sentence (Re X (A Child by His Litigation Friend) [2011] 2 FLR 793; Slade v Slade [2010] 1 FLR 160).

 

Where the court allows an application to purge contempt it cannot then suspend the relevant term of imprisonment. It has three choices: (1) grant the application and order the immediate release of the contemnor; (2) defer the contemnor’s release until a stated future date; or (3) refuse the application  (Doncaster Metropolitan Borough Council v Watson (No 2) [2012] 1 FLR 619).

 

 

MEDIATION AND CHILDREN

 

Mediators are now seeing children both as the subject of proceedings and, where they have a view, as parties or prospective parties and as subject.

 

This creates issues of confidentiality; and as to when a mediator is seeing a child as a party and – if it is true mediation – the child’s views and thoughts on settlement must be passed on to the parents. An to what extent are mediators bound by Working Together and bound to ‘share’ safeguarding information where this is also confidential (see eg Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224).

 

Involving children in mediation – if they want to be involved (see Art 24.3) – may be a powerful tool as between the child’s warring parents; and it must be born in mind that CA s 11J(5) and (6) plainly envisages children being involved in contact enforcement processes.

Retained law and the EU Withdrawal Bill

‘Retained law’: defined

 

The concept of ‘retained law’ is essential to an understanding of how the EU withdrawal bill  cls 2 to 6 are intended to work. This will define what EU law is to stay in UK law and what laws are intended to develop from ‘exit day’? In what follows these clauses will be considered followed by a guide to the powers retained by ministers further to amend primary legislation by delegated powers (‘Henry VIII powers’) in cls 7-9. For the family lawyer the position under retained law must then be compared with each individual case with a EU component: that is where one or both parents are in another EU country and the children (with the other parent or looked after by a local authority) remain in UK or are in a EU country.

 

Clause 6 defines what forms of law will be retained according to the following definitions in cl 6(7):

 

  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision in cl 5;
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of cls 2, 3 or 4 or sub-cls 5(3) or (6).
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day.

 

Cls 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,…

 

Cl 5 defined the intended status of retained EU law (see (3) above):

 

  • Cl 5(1) provides that the principle of supremacy of EU principle no longer applies to any enactment or rule made or passed on or after exit day.
  • Similarly, cl 5(2) provides that the EU supremacy principle does apply when questions arise after exit-day as to the interpretation, disapplication or quashing of pre-exit enactments and rules; and
  • Cl 5(3) says that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that ‘the application of the principle is consistent with the intention of the modification’.

 

The effect of these provisions is that for retained EU law will the EU supremacy principle will apply to pre-exit day legislation, but not after exit day. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law. As already mentions, cl 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day; though, for the avoidance of doubt, under cl 5(5) fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself. To that extent it therefore remains part of domestic law.

 

Interpretation of ‘retained EU law’

 

Cl 6 provides for ‘Interpretation of retained EU law’. Courts are no longer to be bound by decisions of the CJEU, from exit day; and no case or other matter can be referred to the European Court after that day (cl 6(1)). No court need ‘have regard to anything done on or after exit day by the European Court [unless] it considers it appropriate to do so’ (cl 6(2)). Thus decisions of the CJEU made after exit day will not be binding on UK courts and tribunals; domestic courts cannot refer cases to the CJEU on or after exit day; and UK courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.

 

Cl 6(3) requires courts national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The ‘explanatory note’ to the bill expands on this: any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre‐exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the travaux preparatoires (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law).

 

After exit day UK courts will also no longer be able to refer questions concerning the interpretation of Union law to the CJEU. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court for the CJEU when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (cl 6(5)).

 

All that said, s 6(2) affords domestic courts – under the leadership of the Supreme Court – a discretion to develop, or at least to permit, continued links with the EU jurisprudence after exit day.

 

Henry VIII powers

 

Cls 7, 8 and 9 provides ministers with substantial powers by order or other delegated legislation to amend statutory provisions: that is by ‘Henry VIII powers’. First a Henry VIII power must be defined. This was done recently by Lord Neuberger in the Supreme Court in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387 where he explained that the term, by reference to Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9 as ‘commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.’ He continued:

 

[25] … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.

[26] … In the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies (above) para 1.3.11: ‘…as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.

 

Each of the three clauses provide a similar formula, first to deal with ‘deficiencies arising from withdrawal’, thus:

 

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

 

Similar sub-clauses are included for complying with international agreements (cl 8) and for implementing withdrawal (cl 9); and all three clauses (7(4), 8(2) and 9(2)) add the henry VIII cover provision: that any ‘Regulations under this section may make any provision that could be made by an Act of Parliament’. And then, if that is challenged in the High Court the courts, says Lord Neuberger, must check whether the power was in truth ‘outside the legislature’s contemplation’ though subject to the fact that in each case the powers are not general, but are granted in each clause for specific purposes.

Cohabitation property law: a short introduction

Cohabitants: money, children and domestic abuse

 

If the process of family breakdown can be characterised, from a legal point of view, as dealing with children (including child financial support), money, any domestic abuse and (in the case of marriage) divorce, then in all of these the law does not distinguish between married and unmarried couples. Divorce does not apply to unmarried couples, obviously; but the fat of not being married is fundamental to financial and property issues between married and unmarried couples; and that is the main thrust of what follows.

 

On the fortieth anniversary of the Court of Appeal judgment in Davis v Johnson [1978] UKHL 1, [1979] AC 264 (27 November 2017: the case went on to House of Lords) it is worth comparing the law in 1977 with now to show that things have moved a little; but they have not moved in the area of property law and other financial support between cohabitants. This article looks at the present law for those who live together, and who may have children and share property.

 

The law in 2017 does not discriminate when it comes to cohabitants in respect of their children, child support and domestic abuse; though, as explained in Davis v Johnson in 1977 the law moved forward in a way which, at the time, was regarded as truly radical.

 

Domestic Violence and Matrimonial Proceedings Act 1976

 

In the Court of Appeal Lord Denning MR (who sat with four other judges including Sir George Baker P) described the background to Domestic Violence and Matrimonial Proceedings Act 1976 as:

 

‘Battered wives’ are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the [1976 Act]. This Act came into force in June of last year. Soon afterwards many a woman sought the aid of the county courts for protection under the Act….

 

In the House of Lords Lord Scarman (at 347) described the operative part of the 1976 Act as providing a ‘new remedy’, and that also for unmarried partners, as follows:

 

Subsection (2) enables an unmarried woman (or man) who is living with a man (or woman) in the same household as husband and wife to apply to the county court under subsection (1) and expressly provides that reference in subsection (1) to the matrimonial home shall be construed as a reference to the household in which they are living together. This reference indicates to my mind that those provisions of subsection (1), which make available to married people an injunction excluding the other party from the matrimonial home and an injunction requiring the other party to permit the applicant to enter and remain in the matrimonial home, are intended to be available also to unmarried partners.

 

In particular the Act was designed to restrain a party to a marriage from ‘molesting the applicant’ or ‘a child living with her’ (s 1(1)(a) and (b)); and declares that the remedy in s 1(1) shall –

 

(2) … apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.

 

This was the radical extension under the 1976 Act and was succeeded in 1995/6 by what became Family Law Act 1996 1996 Part 4, which preserves (as FLA 1996 s 42) the terminology, undefined, of ‘molestation’ used – as it had been in civil proceedings injunctions – up to then. I considered this more fully in Lord Scarman and a definition of domestic abuse.

 

Discrimination and cohabitation law

 

In contrast to the modern law on domestic abuse, property law (including from income – ie maintenance as between partners) is entirely discriminatory as between couples where they are married or not married. There is, generally, no discrimination in children law (eg under Children Act 1989) or where child support maintenance is concerned (Child Support Act 1991) according to whether parents are married or not. This is also the case in respect of domestic violence or of exclusion orders (the sop to the Daily Mail and assorted Tory MPs in Family Law Act 1996 s 41 (which said that if a couple were not married then where ‘the court [should] have regard to the fact that they have not given each other the commitment involved in marriage’ has been repealed).

 

The law does not differentiate according to gender, sexual orientation or religion. In one of the leading cases, Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, Barry Stack was the non-owning partner and claimant; and an important case on proprietary estoppel (Wayling v Jones [1995] 2 FLR 1029) concerned a same sex couple. That said, it is most likely to be the carer mother who is affected by the unfairness in the law.

 

If a couple is married there is a very clear divide between between the statute law which governs them (Matrimonial Causes Act 1973 ss 22-25A (mostly)), which depends on the discretion of the judges as to how their capital is distributed on relationship breakdown (divorce) and if they are not married, but jointly occupy freehold property. Where couples cohabit, and whether they own property jointly or only one owns, there is tangle between common law (mostly equity) with little scope for judicial discretion. For example, in the recent Liden v Burton [2016] EWCA Civ 275 (proprietary estoppel: see later) Hamblen LJ characterised the issues on appeal as: ‘(1) whether the judge wrongly applied the law to the facts as found; (2) whether the judge erred in the exercise of his discretion in giving effect to the equity’ in the particular case.

 

Cohabitation and co-ownership

 

Two particular sets of circumstances arise: first, where an unmarried couple – hetero-sexual or same sex – live together and jointly own property; or, secondly, where they live together in property which is in the name of one only (A) but the other (B) asserts a claim over that property. The question then is to what extent B may able successfully to pursue a claim against the property in A’s name. If they were married B would have a share unquestionably (the amount would depend on ‘all the circumstances’ of the case: Matrimonial Causes Act 1973 s 25). If they are unmarried (whether with or without children), all sorts of arguments may be needed if B is to secure a share.

 

The starting point is legal title. What is recorded at the Land Registry? What was said at the time when the property was purchased? Equity follows the law. Thus, for example, the law says that if two people own property jointly they have an equal interest in that property, unless the documents say something different. If a property is owned by one of them only, no-one else has a share (save as explained in trust interests below). Lady Hale explained this in Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858 as follows:

 

[56] Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all. In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest.

 

If B claims a different share from what appears on the title then it is for B to prove it. Equitable principles apply. In practice these are more akin to contract principles than to the discretionary rules which apply on marriage breakdown. It remains the case that equity may be able to adjust the shares which appear on the title documents; but it is for the claimant to say why this adjustment should happen.

 

Implied trusts: resulting or constructive

 

The differential ownership – the ‘beneficial interests’ – which equity allows for is to imply a trust:

 

  • A resulting trust – Equity says that two (or more) owners share land in the proportions in which they put money up to buy it even though on the face of the title ownership is different; or
  • A constructive trust – The court imposes on A the requirement to hold property in some way other than required by law.

 

The purchase of property, where another person (A) makes a contribution, generally sets up a resulting trust in favour of the contributor proportionate to any cash contribution. Thus where A gives money to B to buy property, and B does so then a trust results to A for the value of his or her contribution (Dyer v Dyer (1788) 2 Cox Eq Cas 92). B is a trustee for himself and A. A can then enforce the trust as trustee under Trusts of Land and Appointment of Trustees Act 1996 (as explained in Pt 3) not eg as a mortgagee or unsecured lender.

 

The resulting trust is no more than an equitable presumption. It must yield to other evidence that demonstrates that no such interest was intended eg that a loan or a charge were intended; or that (say) a gift was intended (see discussion in Marr v Collie (Bahamas) [2017] UKPC 17, [2017] 2 FLR 674).

 

Constructive trust

 

The more common trust as between cohabitants is where A buys, or (at the relevant time in the relationship) already owns, property in A’s sole name; or that A and B jointly own property, but one of them wishes to say that they own it in shares which are other than equal. The issue then is whether the court will adjust the shares shown on the legal title or will grant a share at all; though as Lady Hale made clear in Stack v Dowden: ‘[69] …. cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.’

 

A trust may be constructed first where the court finds there is an agreement between A and B for differential holding and in addition the court finds that there has been ‘detrimental reliance’ by B on that agreement (Lloyds Bank plc v Rosset [1991] 1 AC 107, [1990] 2 WLR 867, [1990] 2 FLR 155). Thus whilst the resulting trust arises from contributions, the constructive trust is concerned with an agreement, understanding or other bargain relating to property.

 

Thus (say) a man (A) owns property, and agrees with B that she will come and live with him. B gives up her house to live with A (Grant v Edwards [1987] 1 FLR 87, CA); or she puts up money to be used towards the refurbishment of property (Drake v Whipp [1996] 1 FLR 826, CA). Conduct on the part of the claimant may be evidence of an agreement: in Eves v Eves [1975] 1 WLR 1338, CA Janet Eves did a variety of work there, including wielding a 14lb sledge hammer to break up concrete which covered the front.

 

Indeed, Eves v Eves includes the following from Lord Denning MR (at 1431). He describes an unmarried couple:

 

… They get a house; but it is put in his name alone. Then, before they get married, the relationship breaks down. In strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street. She is not entitled to any maintenance from him for herself. All she can do is to go to the magistrates and ask for an affiliation order against him on the footing that she is a “single woman”: and get an order for him to pay maintenance for the children. If he does not pay, she may have great difficulty in getting any money out of him, even for the children. Such is the strict law. And a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing.

 

Little has changed in property law since then. Affiliation orders have gone and are largely replaced by orders under Children Act 1989 and by child support maintenance under Child Support Act 1991. Family Law Act 1996 has developed the law in relation to occupation and non-molestation orders. Equity may be able to bear children, as Lord Denning asserts; but the cohabitation cases considered in this article have hardly taken the law any further forward when it comes to adjustment of property owned by unmarried cohabitants.

 

Adjusting shares in jointly owned property

 

Secondly, a trust may be constructed which alters the legal entitlement where parties own property jointly, but one seeks a differential share. There the court can construct a trust which alters the legal entitlement. Thus in Stack v Dowden a property was held in the parties joint names, which had been bought by them from the proceeds of sale of a property originally owned solely by Ms Dowden. They had brought up their four children in the house. This and other factors lead the Court of Appeal to award Mr Stack 35%, a division upheld by the House of Lords (for reasons explained further later).

 

The constructive trust must be contrasted from proprietary estoppel (with which it shares certain features: eg detrimental reliance). Proprietary estoppel enables the court to hold that, where there has been a promise upon which a party has acted to their detriment, then the promissor should be estopped from denying the existence of the promise and from denying the benefit that was promised by it. The constructive trust vests a beneficial interest in the claimant, that is to say a trust interest in property which can be enforced by an order for sale under TLATA 1996 s 14. Proprietary estoppel will not necessarily result in any proprietary interest, but may result in a damages claim (akin to breach of contract), depending on the nature of the promise and the extent of the detriment.

 

Defining the shares

 

Where the court declares a constructive trust but determines that it should be in shares other than equal, how are the shares defined? Jones v Kernott [2011] UKSC 53 [2012] 1 FLR 45 the Supreme Court attempted to explain their earlier Stack v Dowden.

 

The main factor in a convoluted background in Jones v Kernott was that the couple’s jointly owned property provided a home for J and two children of the relationship; and that liquidation of a life policy belonging to both of them had enabled K to buy his own separate property. These facts enabled the court to infer an intention to alter the legal title to a trust which reduced K’s share to 10% of the property. Lord Kerr summarised their common ground between the justices as, first, that a the common intention may be inferred objectively from the parties’ conduct; or, failing that, that each of the couple is entitled to such share as the court considers fair; and in considering fairness the court must consider the ‘whole course of dealing between the parties’.

 

Lady Hale and Lord Walker explained these propositions as:

 

[47] In a case such as this, where the parties already share the beneficial interest, and the question is what their interests are and whether their interests have changed, the court will try to deduce what their actual intentions were at the relevant time. It cannot impose a solution upon them which is contrary to what the evidence shows that they actually intended. But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.

 

Need for law reform

 

In truth, property law for cohabitants has only moved fractionally since Lord Denning’s comments in Eves v Eves. Some of the more depressing aspects of this area of law include

 

  • The failure of political parties to recognise the fundamental need for thoroughgoing reform to recognise the modern attitude to unmarried families and their children;
  • The law’s failure to recognise that the fact that one partner reposes trust in the other must be recognised fully by the law; and
  • That couples do not necessarily sit down before marriage or before starting their relationship and meticulously plan their financial futures as was recognised by the very human words of that human Chancery judge Waite LJ in Midland Bank plc v Cooke [1995] 2 FLR 915, CA – over twenty years ago – when he said (at 927):

 

Equity has traditionally been a system which matches established principle to the demands of social change. The mass diffusion of home ownership has been one of the most striking social changes of our own time. The present case is typical of hundreds, perhaps even thousands, of others. When people, especially young people, agree to share their lives in joint homes they do so on a basis of mutual trust and in the expectation that their relationship will endure. Despite the efforts that have been made by many responsible bodies to counsel prospective cohabitants as to the risks of taking shared interests in property without legal advice, it is unrealistic to expect that advice to be followed on a universal scale. For a couple embarking on a serious relationship, discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together….

 

Urgent law reform is needed to make cohabitation property law fair, especially – but not only – where couples have children and where one (generally the mother) gives up a career or time at work to look after the couples’ children.

Brexit: retained law and family proceedings

Family law after EU withdrawal

 

The pending process of EU withdrawal leaves English lawyers in a similar position, I suspect, to Anglo-Saxon lawyers immediately after the Battle of Hastings in 1066 (with the Tory Government now standing in as William the Conqueror’s victorious barons). How much of their law, they wondered, would survive the Norman Conquest? In the case of modern lawyers and Brexit, 950 years after the Norman arrival, what retained law will be permitted following passage of the European Union (Withdrawal) Bill (‘the withdrawal bill’), now before Parliament?

 

The starting point for this article (and its accompanying explanation) is Brexit and Family Law (October 2017; the ‘family law withdrawal paper’ or FLWP) published by FLBA, International Academy of Family Lawyers and Resolution who describe themselves as ‘the lead specialist family law practitioners’. The paper is a short (18 page) document which aims to produce recommendations as to where reciprocal family law arrangements (if any) should go following EU withdrawal.

 

An immediate problem is that it makes no attempt to explain the proposed statute law – still only in a bill, I accept – to its readers. In particular it does not explain the critical feature of the bill namely ‘retained law’ (cl 6). It makes no explicit reference to the extent to which the common law may be able to adapt principles of EU law to family proceedings. And it proposes an option for law reform (‘Option (i)’) which, save with a very large amount of EU good-will and law reform, is impossible to achieve.

 

This article outlines some of the family law issues and aims only to introduce EU withdrawal. It will be backed by future articles which will expand on what is said in summary here, and will proceed as follows:

 

  • The background to the withdrawal bill
  • A summary of the content of the bill
  • A review of the options in the FLWP
  • Thoughts on where now for family law reform; and suggestions in areas where FLWP seemed reluctant to tread…

 

Background to the bill

 

In a referendum in June 2016 United Kingdom has been treated as having voted to leave the EU. On 16 March 2017 European Union (Notification of Withdrawal) Act 2017 received royal assent. A EU (Withdrawal) Bill (‘withdrawal bill’) is now before Parliament. Clause 1 of the bill repeals European Communities Act 1972 (ECA 1972) from the date of exit from EU. It must be assumed that at the end of March 2019 (if Mrs May gets her way) UK law will no longer be governed by EU legislation. The question for any lawyer – by which I mean here, any family lawyer – is, what will be left of EU law once that happens.

 

The withdrawal bill is the only source material accompanied by the Department for Exiting the EU (‘DExEU’) euphemistically named ‘future partnership papers’ (little or none of which – bill or partnership papers – are given any prominence in the withdrawal paper). The paper which includes reference to EU-UK family litigation is Providing a cross-border civil judicial cooperation framework. It is a brief, bland document intended – touchingly – to ‘establish a deep and special partnership [for UK] with the EU’. On inter-EU country co-operation it includes:

 

6 Civil judicial cooperation is the legal framework that governs the interaction between different legal systems in cross-border situations. In particular, this framework provides rules to determine which country’s courts will hear a civil, commercial or family law case raising cross-border issues (jurisdiction); which country’s law will apply (applicable law); and enables a judgment obtained in one country to be recognised and enforced in another (recognition and enforcement)….

 

Any court order is only worth the extent to which it can be enforced (a point made, though not developed, by the Brexit paper). A parallel partnership paper is intended to deal with, Enforcement and dispute resolution. This paper is innocent, it seems, of the need for a court back-up: the bill abolishes in UK of the Court of Justice of the European Union (‘CJEU’):

 

The papers show little awareness in DExEU of the extent that cross-border families – as will appear from examples given separately – depend on the co-operation of courts in individual EU countries; and of the fact that the final arbiter of this co-operation is CJEU. Such cases as Re Rinau (Case C-195/08) [2009] Fam 51, [2008] 2 FLR 1495 (relied upon by the Court of Appeal in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347) shows only too clearly how essential CJEU law is to UK family law. Child and Family Agency v JD (Case C-428/15) EU:C:2016:548 [2017] 1 FLR 223 show the importance of cooperation between jurisdiction for example under Brussels IIA Art 15.

 

European Union (Withdrawal) bill and retained law

 

Under a sub-heading ‘Retention of existing EU law’ cls 2 to 6 of the bill defines what EU law is to be retained by UK institutions. The term ‘retained law’ is essential to an understanding of how the law is intended to develop from the ‘exit day’ when EU withdrawal happens; and it is these laws which will – or will no longer – underlie our advice to clients and children.

 

Clause 6 defines what forms of law will be retained:

 

  • ‘retained case law’ is composed of ‘retained domestic case law’, and ‘retained EU case law’; both depend on what the law is held to be ‘immediately before [EU] exit day’
  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision (above);
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above.
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and subject to the relator provision (above);

 

Clauses 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,..

 

Rights; or ‘rights undermined’…

 

Of retained rights it will be recalled that R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 at [69]-[73] (not referred to in FLWP), included the following of Brussels IIA:

 

[71] … Some rights falling within one category may be closely linked with rights falling within another category. For example, the rights under [Brussels IIA],would be undermined if a domestic judgment governing the residence of a child could not be enforced outside the UK.

 

Brussels IIA will be direct EU legislation; but as is emphasised by Miller it operates only so far as it goes since its operation depends on the co-operation of EU member states; and no-one knows yet how far such cooperation – if any – will be forthcoming.

 

By cl 5(4) the EU Charter of Fundamental Rights (which in important respects extends European Convention 1950) ceases to be part of domestic law on or after exit day. However, according to clause 5(5), fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself and can therefore form part of domestic law.

 

The Charter is critical to English children law (as Re D [2016] above, reminds us):

 

[15]   Recitals 12 and 13 [of Brussels IIA] deal with the underlying philosophy which is decision making based on the best interests of the child and recital 33 incorporates the fundamental rights of a child in the EU as set out in Art 24 of the Charter… which states:

‘(1) Children shall have the right to such protection and care as is necessary for their well-being. They may also express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

 

Clauses 2-4 propose that most existing EU law remains part of UK law; but cl 7 and Sch 7 recognise that a proportion of EU law will either be inappropriate following exit, or can only work in UK if modified (because, for instance, it presupposes things that no longer apply following withdrawal). Consequently cl 7 confers powers on Ministers of the Crown to amend, repeal or replace retained EU law – that is, what was originally primary legislation – by making administrative regulations also known as Henry VIII powers (as recently explained by Lord Neuberger in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531 at [25]). Thus cl 7(1) enables a government minister:

 

(1) … by regulations [to] make such provision as the Minister considers appropriate to prevent, remedy or mitigate—

  • any failure of retained EU law to operate effectively, or
  • any other deficiency in retained EU law, arising from [EU withdrawal].

 

Recent case law examples

 

A variety of recent cases show the importance of EU legislation, pre-eminently Brussels IIA; and all our courts which deal with family law – even up to Supreme Court (see eg Re B (A child) [2016] UKSC 4, [2016] AC 606, [2016] 1 FLR 561) – are fundamentally influenced by CJEU jurisprudence. Such cases as B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) (09 May 2017), MacDonald J and Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWFC B82 (OJ) (19 September 2017), HHJ Carol Atkinson as High Court judge provide examples from the financial relief and public law children jurisdiction, of the importance of EU legislation to UK family law.

 

Meanwhile in FE v MR & Ors [2017] EWHC 2298 (Fam) (14 September 2017), Baker J considered Brussels IIA Art 15 in relation to recognition and enforcement of family court orders so that a UK court (as the court of a member state (a requesting court)) can request the court of another member state (Spanish), where the requesting state might ‘be better placed to hear the case’ (Art 15.1.

 

Options and the EU withdrawal paper (FLWP)

 

FLWP (the FLBA etc withdrawal paper) summarises its exit day ‘Options for family law’ as follows (at pp 14-17). It touchingly hopes for inter-EU member agreement with its deserting ‘partner’ (ie UK). ‘Option (i)’ is to retain full reciprocity. It is said the UK Parliament ‘could replicate the EU instruments in our own domestic law and maintain the existing reciprocal arrangements between the UK and the other EU member states’. (The paper talks of ‘UK’; though it is not clear to what extent its authors speak for Scotland and Norther Ireland.) This option does not acknowledge the need for reciprocal legislation from all EU state.

 

‘Domestication without full reciprocity’ is regarded as ‘completely unsatisfactory’, the ‘worst of all outcomes’, now or in the long-term; but this is what the bill and Miller – unmentioned by the authors – anticipated. And this is what seems to be the outcome envisaged by the EU withdrawal bill, the specific consequences of which are not reviewed by FLWP.

 

The recommendation is for ‘our own bespoke arrangement’ – the term used by the authors, in effect, for their anticipated procedural law reform – to provide a ‘new framework for family law co-operation between the UK and the EU’. This is the firmly preferred outcome; but merits only two paragraphs in the paper. No evidence is provided that all – or indeed any – other EU jurisdictions will agree to reciprocate with English courts as has been EU law up to now. In default of agreement, our clients must be told that the best option would take ‘a very long time to consider, negotiate and put into place’… ‘It will not be possible to agree a bespoke arrangement by 2019 given the enormity of the task.’ If the Government tips us off the cliff then: what next?…

 

What is to be done?

 

Option (iii) proposed by FLWP and its not-possible-to-deal-with-it-by-2019 is unsatisfactory. It is like saying: it will take too long to put together a defence – whether in war or as advocate in a case – so we won’t defend. It is to think that the opposition – in this case the Government – will just say ‘OK that’s fine we’ll leave the law as it is’; and all the EU member states will say ‘there, there of course our judges must go on co-operating with you, even though you’re outside the EU now…’.

 

I rather think it may not work like that. Lawyers have had since June 2016; and there are 15 months to go (say till around March 2019) to ‘agree a bespoke arrangement’. Harold fought off the Danes at Stamford Bridge, and then managed to turn up – and nearly to win – the Battle of Hastings. If other EU courts will not co-operate with English courts – and do we yet know that they won’t? – and if falling off the EU reciprocity edge is to be softened as much as possible, our MoJ and DExEU will need to do something – if only, at least, to protect the rights of children which may be lost.

 

The following questions may provide a start:

 

  • To what extent can we do we have to do reciprocal jurisdiction deals with individual EU countries; or will they expect – or agree to – an approach common to all respective 27 jurisdictions?
  • To what extent can we model arrangements on reciprocal arrangements with other non-EU nation jurisdictions?
  • Are there any international agreements as to how children’s views should be received in proceedings which concern them (see eg Re D [2016] (above))?

Secrecy and disproportionality in the family courts

Attempts to ‘conflict out’ a party to family proceedings

 

In ZS -v- FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017) Williams J allowed a rich (I assume) Russian to spend two days arguing whether or not his wife (who may of not be FS: see later) should be allowed to use Ray Tooth (RT) whom she had chosen to instruct. In the meantime the ‘representative’ (OE) of the husband (say, ZS) said he had been to see RT, who could not remember the meeting. The judge assumed this was an attempt by ZS to ‘conflict out’ (a new verb?) FS so that she could not use Tooth to act for her. ZS’s application was unsuccessful.

 

The judge found OE (why ever was his case kept anonymous) to be ‘blasé about … accuracy in matters evidential’ (as the judge put it at [68]). Others might have said OE was lying. The case was heard in ZS’s absence, though with ranks of lawyers and OE present and a witness for ZS.

 

Why does all this matter? There is a relatively well-developed jurisprudence in relation to conflicts of interests if a professional who owes a duty to one client, and then takes on another with a conflicting interest. Like the accountants in Bolkiah v KPMG [1998] UKHL 52, [1999] 2 AC 222, solicitors may not do it. In the field of matrimonial litigation the issue has arisen, for example, in Davies v Davies [2000] 1 FLR 39, CA (another case in which RT could not remember a client) and Re Z (Restraining Solicitors from Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132 Bodey J. The subject is well-aired. So too is that of legal professional privilege which is the other aspect of the case which looks at law, though in connection with mostly well-known cases.

 

It is what the case does not look at – but perhaps should have done? – is what this note considers: first, the question of proportionality; and, secondly, at release of information to help us ‘make sense’ of the case.

 

Overriding objective; and what may have been left undone in ZS v FS

 

Since the end of the 1990s there has been a real concern amongst civil lawyers to keep cases within bounds (ie ‘proportionality’); and this expresses itself in what were intended in Civil Procedure Rules 1998 Pts 1 and 3 to be tighter case management rules, incorporated 12 years later into Family Procedure Rules 2010 (FPR 2010) Pts 1 and 4.

 

This application – it was an interim hearing which I assume ran under FPR 2010 Pt 18 – lasted two days. It engaged a QC per party each with a junior (with solicitors sitting behind, and as witnesses). It resulted in a 72 paragraph judgement as well as, within that and in addition, a three page chronology. The court fee for an application like this (if any was charged) this is £155 (ie the payment to the Treasury for all that, plus ushers, court staff, heating lighting etc).

 

The application – which would normally be dealt with on paper (perhaps with short submissions) by a district judge – was ‘a hearing other than the final hearing’ (FPR 2010 r 22.7), so ‘the general rule is that evidence at [such] hearings… is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise’. There is nothing in Williams J’s judgment to say he had considered r 22.7, and what he had concluded from r 22.7 to make him decide upon a full hearing on evidence being called.

 

We do not know why the case was not dealt with summarily on the papers. Outside London, you would expect a case like this to be dealt with by a district judge on the papers; with maybe short submissions only.

 

Proportionality and expeditious disposal

 

And then the overriding objective and proportionality in FPR 2010 terms, surely, comes into it? FPR 2010 r 1.1 requires that cases be dealt with ‘justly’; and this surely includes the court administrators and judge giving thought to others – others more deserving, if not so rich? – who might want a High Court judge’s time. ‘Dealing with a case justly’ (FPR 2010 r 1.1(2):

 

(2) … includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;… and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

True it is that the judge says (at [32]) he found it very helpful to hear ‘the parties give oral evidence’ (though did this include the husband? – I think not); but surely it must have been possible to devise a summary basis for the application and for it to be heard in a fraction of the 2 days and by a district judge? This is what the ‘overriding objective’ and its appeal to proportionality would anticipate.

 

We send children whose parent says they are ‘at grave risk [of suffering] physical or psychological harm’ (Hague Convention Art 13(b)) back to their former homes by a summary (ie no oral evidence) process. Children are rarely heard. An application like that of ZS should surely be treated as less important than the future of a child? After all, the worst would be that his wife could not have RT as her lawyer. Excellent though he may be (had the wife lost on this application), there are others…

 

Banks of lawyers – family lawyers who would know the rules for family proceedings – were involved in this case. Did any of them draw to the judge’s attention to FPR 2010 rr 1.1, 18.7 or 22.7? If they did, the judge does not say so.

 

Hearing documents and a ‘skull painting’…

 

The other unwitting aspect of the case is that of ‘hearing documents’. This is a well-trodden path. This case only shows the increasing need for it, if judges are to be able to keep their judgements relatively economical in length.

 

‘Transparency’ it has been suggested from judges at the highest level (see eg Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338’ Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 and Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618) could – must, in the interests of openness – be increased by release of certain documents read by the judge outside the hearing. This would enable those who attend court or otherwise want to ‘make sense’ (Lord Scarman’s term) of proceedings (eg witness statements, skeleton arguments etc suitable anonymised).

 

The essential elements of ZS’s main application before the court (for a declaration of the validity of a Russian divorce) are said to have been ‘set out at B3’; and an unexplained ‘skull painting’ (referred to only once in the judgement ay [15]), are listed amongst a number of items which are intended show that ‘the meeting’ with OE took place. An understanding of the declaration application may be essential to an understanding of the judge’s decision; the ‘skull painting’ less so. The reader of the judgement (as would have been the case for anyone attending the hearing) can only make limited sense of it, without also being able to read certain basic documents.

 

What price proportionality?

 

The reality of transparency and the understanding of proceedings will be the greater if this issue – for courts which sit in private and in open court (as the example of the Guardian v Westminster case makes clear) – is looked at soon; and see Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

We shall never know what part ZS’s wealth had in the generosity of High Court time given to him. It certainly was not the difficulty of legal principle involved (despite the array of learned counsel deployed to argue it). Most of the cases cited are well-known; and do not form any express part of the judge’s decision-making (ie in one paragraph he merely lists the cases he has been referred to).

 

Secrecy over release of court documents is still not part of any ‘transparency’ procedure in any civil proceedings; and has nothing to do with a party’s money. However, it is a matter for thoughtful review of court process; and of anonymisation of read documents for private hearings.

 

And why anonymity?

 

Finally, it might be mentioned in passing: why was this case in private and why anonymity for the mysterious OE? The husband is found to have been ‘strategising and manoeuvring’ ([65]) over the case and aspects of OE’s evidence ‘are patently false’ ([68]). As Tomlinson LJ said in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 142 of a first instance decision not to publish:

 

[87] … It is I think unrealistic to assume that the revelation of dishonesty or other misconduct in the course of the litigation of a private dispute, particularly a matrimonial dispute, will necessarily attract any great interest from those not immediately affected by the outcome. I agree that dishonesty is not ordinarily entitled to confidentiality….

 

And any decision on anonymity is for the judge himself to address (R v Legal Aid Board exp Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA), since the parties are likely to want to keep this sort of hearing private (Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J).