Practice directions and President’s guidance

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Creating ‘law’ by practice direction and guidance

 

In ‘“Guidance” as law’ , for ICLR, I considered the status of judicially-issued ‘practice guidance’ as a form of law-making. Last month saw two instances of what practice guidance and practice directions mean in the hierarchy of what is authoritative law (ie the common law (ie judge-made law) and statutory law). These examples maintain my criticism of practice directions and practice guidance – especially practice guidance – as a means of creating forms of law.

 

First ‘hierarchy’: I shall assume in what follows that primary law consists of (1) the common law, which is created by High Court (and higher court) judges and can only be altered by (a) statute law or (b) a decision of an appeal court (or in the case of a Supreme Court decision, by a later Supreme Court decision); (2) statute law (ie Acts of Parliament); and (3) secondary legislation, delegated to a minister or other statutory body by a statute (an example of this will be seen shortly in delegation of rule-making to Family Procedure Rules Committee).

 

There are other forms of quasi legislation: described by Administrative Law (2014) Wade & Forsyth (11th Ed) at p 732, as ‘a jungle of quasi-legislation’: practice directions, practice guidance, protocols and so on. This article deals with examples from this ‘jungle’. And always it must be recalled that regularly – as in the NY case considered below – the Supreme Court over the past four years has queried the vires and correctness of certain practice directions (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228, [2015] 1 FLR 972; Sharland v Sharland [2015] UKSC 60, [2015] 2 FLR 1367).

 

Practice directions consistent with law: NY and the Supreme Court

 

Practice guidance, the quasi-legislative form adopted so often by Sir James Munby as Family Division President, is considered later in this article. Neither practice guidance nor practice directions can override existing primary law where they are shown to be wrong (see U (A Child) v Liverpool CC sub nom KU (A Child) v Liverpool CC [2005] EWCA Civ 475, [2005] 1 WLR 2657 (below)). A practice direction can only regulate the way the law proceeds; and if it cannot be supported (ie explained by) by primary law it is likely to be incorrect.

 

This proposition can be illustrated by NY (A Child) [2019] UKSC 49 (30 October 2019), a mother’s successful appeal against a return order of the parties’ nearly three year old child to Israel. The judgement was of Lord Wilson (with whom Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agreed). The mother’s argument had drawn attention to a practice direction in Family Procedure Rules 2010 (FPR 2010) PD12D.

 

PD12D para 1.2 emphasises ‘the width of the inherent jurisdiction’, said Lord Wilson, and includes:

 

The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common – … (e)       orders for the return of children to and from another state.

 

The mother, said Lord Wilson (at [36]), focusses on PD12D para 1.1 which says:

 

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989. (Emphasis supplied)

 

Lord Wilson considered the force of practice directions. The rules themselves (ie FPR 2010) are made pursuant to Courts Act 2003 s 75(1) and so have legislative force. By contrast, said Lord Wilson:

 

… Practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, at para 48: “… a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

 

So was ‘the categorical instruction in [PD12D para 1.1] wrong?’ To answer this Lord Wilson reflected on the pre-Children Act procedures for using wardship to bring a child into care, and contrasted this with the ‘one of the major achievements of the 1989 Act was to streamline the procedure for ordering a child to be placed in the care of a local authority’ and the inhibition against this in CA 1989 s 100(2) (inherent jurisdiction not to be used to place a child in care). His view of the significance of this (at [40]) was that Parliament ‘by contrast [with s 100], nowhere sought to preclude exercise of the inherent jurisdiction so as to make orders equivalent to those for which sections 8 and 10 of it provide, including specific issue orders’.

 

There was no statutory provision ‘which the instruction in PD12D para 1.1 could be said to reflect’; so the Supreme Court should go on to ‘turn to consider case law’ (at [41]). None could be said to support the practice direction. Lord Wilson therefore concluded that para 1.1 ‘goes too far’ and was too prescriptive. An applicant was entitled to apply, in appropriate cases, under CA 1989 Pt 2 (for a specific issue order) or under the inherent jurisdiction:

 

[44] … There is no law which precludes the commencement of an application under the inherent jurisdiction unless the issue ‘cannot’ be resolved under the 1989 Act. Some applications, such as for a summary order for the return of a child to a foreign state, can be commenced in the High Court as an application for the exercise of the inherent jurisdiction. But then, if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order… will need to be addressed….

 

‘President’s guidance’

 

The practice guidance format has been taken up by the new Family Division President, Sir Andrew McFarlane P. His recent ‘President’s guidance as to reporting in the family courts’ dated 3 October 2019 had a five month gestation period, but still emerges in the undemocratic form of ‘President’s guidance’. With the greatest respect to Sir Andrew, it contains – it seems to me – a number of errors of law (for a commentary see ‘Guidance to “reporters” on varying reporting restrictions orders’ : a summary of that commentary follows).

 

The guidance deals with how ‘reporters’ may apply to vary reporting restrictions orders (ie orders made by the court to restrict them, or publicity in general, in the reporting of proceedings in family proceedings courts: RROs). It nominally applies to all family cases ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the [family courts]’ (para 1); though its references to eg Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) (contempt for reporting of children proceedings) suggest it is aimed mostly at children proceedings. Its aim is ‘to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions’ in family courts (para 1).

 

A procedure for release or varying reporting restrictions orders

 

The guidance then goes on to tell the reporter – a journalist or ‘legal blogger’ – what should formally be done to vary or release a RRO. It tells journalists what they may get away with in terms of application to the court; and continues with guidance given by Sir Andrew as to how, informally, to apply for variation. Judges, he says, should be ‘astute to assist reporters’ seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested. At the start of a hearing attended by a reporter the judge should enquire if a RRO variation application is to be made; and, if there is none at that stage, invite ‘the reporter’ to alert the court if the situation changes.

 

This passage indicates the weakness of the ‘guidance’. Where does the reporter stand if the judge will not here him or her, or fails to follow the guidance? How formally, and to whom, can the reporter apply (eg by FPR 2010 Pt 18 application in the proceedings in question). Even a practice direction put out by Family Procedure Rules Committee (FPRC) would have been stronger – and perhaps clearer – than this.

 

Better still, surely, an amendment to the rules setting out procedure on this important point? None of this has the force of law; and it appears to have been done in this way to avoid the democratic control and assistance of FPRC.

 

Costs and President’s guidance

 

This guidance applies to all forms of family proceedings (not just to children proceedings). Sir Andrew’s guidance on costs is therefore striking:

 

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

 

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

 

Orders for costs are very rare in children proceedings, as between private parties (eg parents) or if a local authority applies for a care order. But what ‘standard’ rules apply for media representatives and their employers in the generality of family proceedings; or, indeed, in children proceedings? The general rule is that costs are in the discretion of the court, save where statute or a rule says otherwise (Senior Courts Act 1981 s 51(1)). Costs are generally paid by the unsuccessful party (ie the ‘reporter’ if a reporting restrictions order is not varied, and the point is argued in court). ‘President’s guidance’ is neither rule nor statute. It can bind no party nor any judge.

 

Given that the applicant for the variation is generally a commercial body – not a parent or local authority caring for children – it seems likely, save where a variation is agreed, that a issues of costs will arise in contested RRO cases, especially in non-children family proceedings.

 

Open justice and regulation of reporting restrictions

 

In terms of procedure generally, and of costs in particular, the ‘reporter’ who is concerned with this guidance, is entitled to ask to what extent Sir Andrew’s ‘guidance’ does truly represent the law; and insofar as that reporter wishes to follow it, how does he or she urge in on the reluctant Family Division or Family Court judge, district judge or bench of magistrates.

 

It is important that family courts be properly and fairly opened up; but given that open justice is so pre-eminently a common law doctrine surely primary legislation should be made – at least by court rule – to establish how reporting restrictions are to be regulated.

Guidance to ‘reporters’ on varying reporting restrictions orders

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President’s guidance on procedure

 

‘President’s guidance as to reporting in the family courts’ dated 3 October 2019  was issued late last month. (A draft of this ‘guidance’ had been circulated in May, which this final version follows.) It deals with how ‘reporters’ may apply to vary reporting restrictions orders (ie orders made by the court to restrict them, or publicity in general, in the reporting of proceedings in family proceedings courts: RROs); though non-parties other than ‘reporters’ (accredited media representatives and ‘legal bloggers’ in Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f) and (ff)) are affected by the proceedings to which the guidance relates.

 

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

 

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

 

The aim of the guidance, it says, ‘to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions’ in family courts (para 1). It sets out the main rules (FPR 2010 rr 27.10 and 27.11(2)(f) and (3)) and statutory provisions (AJA 1960 s 12(1)(a) and Children Act 1989 s 97(2) which formally restrict journalists); though little is said of the stick judges have – criminal contempt proceedings against journalists and their newspapers – if the law is thought to have been breached.

 

A procedure for release or varying reporting restrictions orders

 

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

 

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

 

Para 8 continues with informal guidance given by Sir Andrew:

 

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

 

Criminal contempt and reporting restrictions

 

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

 

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

 

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

 

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

 

Costs and President’s guidance

 

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

 

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

 

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

 

Orders for costs are very rare, as between private parties (eg parents) or if a local authority applies for a care order; but I am by no means sure that most judges would say the same ‘standard’ rules apply for media representatives and their employers (the journalist n Re R was a free-lance). The general rule is that costs are in the discretion of the court, save where statute or a rule says otherwise (Senior Courts Act 1981 s 51(1)). ‘President’s guidance’ is neither rule nor statute. It can bind no party nor any judge; though that is a subject for another day.

 

Given that the applicant for the variation is generally a commercial body – not a parent or local authority caring for children – it seems likely, save where a variation is agreed, that a issues of costs may often arise in contested RRO cases.

Financial relief: a survey of ten cases over the past 50 years…

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Discretion and the finance judge

 

Matrimonial Causes Act 1973 s 25 imposes a duty to exercise judicial discretion. Substantive law plays only a small part. Despite what many family law barristers, and a few judges, tell you there are no precedents in relation to s 25 distribution in the strict sense of the term: an exercise of discretion is not law. One of the architects of the financial relief scheme in the early days of the 1973 Act was Ormrod LJ who explained this point as follows in Martin (BH) v Martin (D) [1978] Fam 12, [1977] 3 WLR 101, (1977) FLR Rep 444 at 450, CA:

 

It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the 1973 Act, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion. If property suddenly became available all over the country many of the rationes decidendi of the past would be quite inappropriate.

 

That said, there are cases which provide important guidelines (White (below) is an obvious example). In what follows most turn on points of law; few on discretion. Law must be followed, until overridden by a higher court. By contrast, guidelines are just that – though the higher you go the more persuasive they are.

 

By definition if an appeal is to be allowed on a point of law, it will be changed only by a higher court, where it is said to be wrong (see eg Sharland below). Cases which decide matters in the discretion of the judge should only rarely be set aside on appeal (see Piglowska (below).

 

Top ten financial relief cases

 

My top ten financial relief cases since 1971 (when the present law came in) include:

 

Edgar v Edgar [1980] 1 WLR 1410, (1981) FLR 19, CA – This case is a matter of law: the court must decide whether or not there was a pre-proceedings (ie a separation) agreement; and if so whether it is fair that the court follows it (as confirmed by the Supreme Court for pre-nuptial agreements in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900).

 

Minton v Minton [1979] AC 593, [1979] 2 WLR 31, (1978) FLR Rep 461 – A court must seek a clean break; and now in Matrimonial and Family Proceedings Act 1984 by amendment at MCA 1973 s 25A (which made working towards a clean break statutory) but the Lords’ reasoning for this is valuable (and see Ringo Star’s case: S v S [1986] Fam 189, [1987] 1 FLR 71, Waite J).

 

Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813 – Both parties owe a duty to the court and to each other to provide full relevant disclosure, as a matter of law; and which some have said gives the court an inquisitorial power (doubted by such eminent judges as Lord Nicholls and Lord Neuberger MR in other contexts). All relevant material must be before the judge before the court makes a decision.

 

Piglowska v Piglowski [1999] UKHL 27, [1999] 1 WLR 1360 [1999] 2 FLR 763 – This case makes a number of points of law by a great judge (despite his oversight in the Pinochet case), Lord Hoffman:

  • Only rarely should permission to appeal be given in respect of a discretionary decision;
  • It is inappropriate to criticise line-by-line an ex tempore judgement; and most important
  • A ‘free-wheeling’ approach (as adopted by the Court of Appeal) to judicial notice (ie assumptions about facts) was wrong: there must be evidence to prove a point sought to be established (Martin (BH) v Martin (D)[1978] Fam 12, [1977] 3 WLR 101, (1977) FLR Rep 444 at 450, CA)

 

White v White [2001] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 – With Miller/McFarlane one of two very important guideline cases: the sharing and the compensation etc principles explained by the House of Lords.

 

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 1 FLR 1186

 

TL v ML and others (Ancillary Relief: Claim against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263 Nicholas Mostyn QC sitting as a High Court judge – This case is procedural law and explains how a case involving assets held on trust by third parties – ‘chancery issues’ – should be pleaded and conducted. It been approved since by eg eg in Edgerton v Edgerton and Shaikh [2012] EWCA Civ 181, [2012] 2 FLR 273.

 

Fraud and Imerman documents

 

Lifely v Lifely [2008] EWCA Civ 904 – This is not a financial relief case; but a story of two farming brothers who fell out. It is, however, an important anti-dote to such cases as Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814 and L v K (Freezing Orders: Principles and Safeguards) [2013] UKHC 1735 (Fam), [2014] Fam 35 (also UL v BK), Mostyn J which say lawyers must hand over to the other spouse documents ‘unlawfully’ taken by their client (‘Imerman’ documents). That is not what the lawyers for brother A did in Lifely (in my view correctly); for by doing so in that case they showed that brother B’s diary showed he may have lied to the court (see Sharland and fraud unravels all) at the hearing below.

 

Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228, [2015] 1 FLR 972 – By definition, and as a matter of law, a financial relief application cannot be set aside (Mr Vince is the eco-millionaire who is taking on the government in Scotland), whatever the rules might say. The court must exercise its discretion under MCA 1973 s 25, which it cannot do if it strikes out a case. Trying the case and making no order is different: then at least the s 25 factors have been considered.

 

Sharland v Sharland [2015] UKSC 60, [2016] AC 871, [2015] 2 FLR 1367 – As a matter of law, if a party has lied, no order based on the lie (or lies) can be allowed to stand and must be set aside (‘Fraud unravels all’ as Briggs LJ recalled in the minority in the Court of Appeal).

 

Waggott v Waggott [2018] EWCA Civ 727 (11 April 2018) – If a law student wants an example of an appeal which should probably not have got permission to appeal (ie an example of a decision in the discretion of the judge below), but who wants to be confused by lawyers dancing on a pin-head – this is a good one. It got to the Court of Appeal, engages 150 paragraphs of judgement (to turn down the appeal). And it will arise only very rarely (if at all) in anyone’s practice.

 

My advice to any lawyer starting out on a matrimonial financial relief career will be not to be bamboozled by the massive variety of reported financial relief cases. Spot the ones which help to define the law (the cases referred to above are important examples); and get the hang of the major guidelines cases such as White and Miller/McFarlane. Most of the rest is snippets of only marginal interest; and few judges – certainly at the district judge and circuit judge level – will thank you for providing them with irrelevant (or only tangential) extra reading.

 

The bones of most of the law for financial relief cases are in Matrimonial Causes Act s 25(1) and (2). Pick through those bones and make an order: that is discretion.

Children’s rights: thirty years on from the Children Act 1989, Part 2

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A child’s views and Children Act 1989

 

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989. Thirty years on, the first article of these two looked at some of the more striking features of the Act. What case law has there been in relation to children’s views and how are their rights looked at by the English and Welsh courts (considered more fully at Ch 6 in Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional)?

 

This article asks: to what extent are those views taken into account? It starts from where Part 1 finished: a child only has rights if that child can understand, first, what those rights are and, secondly, how to exercise them. In the absence of these rights being understood and how to access operation of those rights, they can only exist in near futile abstract.

 

Contexts in English law where a child may make the child’s own application

 

The following are the main categories of circumstance where a child may want to make that child’s own application in family proceedings (examples of some of the types of case from existing case law are provided in Part 1). Most of these cases will proceed under CA 1989, but not all (eg child abduction or wardship):

 

  • A child’s free-standing application, whether or not with legal representation (CA 1989 s 10(8));
  • A child who wants to join in existing proceedings and to make the child’s own application and to have that child’s views taken into account;
  • Within existing private law proceedings, to dispense with a court-appointed guardian and for the child to proceed alone (with or without a lawyer);
  • A child whose instructions to the child’s instructed solicitor conflict with those of the children’s guardian (mostly in care proceedings); and the child wants her case to proceed on her instructions; and
  • A child who wishes to make her own court application alongside an earlier care order; and she wants to instruct her own solicitor where the child’s views conflict with the court appointed children’s guardian (see Re W (Child’s Representation) below).

 

The next question is: how in each category of case does a child (‘Chloe’) know how she can make application to the court, always assuming somebody has told her she has the right in the first place?

 

Lawyers get the law wrong

 

I will start with the last of these examples first, since it shows how even senior judges can get this area of law wrong (and they most certainly have access to law books and legal knowledge in a way which Chloe does not).

 

In Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027, the Chloe character aged 16 was subject to a care order but wanted to return home. When she ran away, the local authority did not want her returning home so applied for a recovery order. Unlawfully, but no one seems to have noticed this (a recovery order is not of a type which requires the court to appoint a children’s guardian), the court appointed a children’s guardian (R). This was the same guardian with whom Chloe had disagreed when the care order was made. Despite Chloe’s age, the solicitor (G) appointed by the unlawful children’s guardian, took instructions from the guardian not from Chloe. The Court of Appeal does not remark on any of these illegal steps.

 

In parallel with the recovery order application, Chloe found a lawyer (S) to act for her free (only G could get legal aid). S helped her to make an application for a discharge of the care order. In law that was now the right time for a children’s guardian to be appointed; but there was then no reason – again in law – for a children’s guardian to be appointed: Chloe already had a solicitor who was acting for her. Had everyone followed the law up to this point, this case would not ever have got to the Court of Appeal.

 

Black LJ (now Lady Black in the Supreme Court) found the law as to a child’s representation in Re W (Child’s Representation) of ‘complexity’. For example:

 

[18] There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010 [ie FPR 2010 Pt 16]….

 

This is a truly remarkable passage: two Court of Appeal judges (Black LJ sat with Tomlinson LJ), three barristers and their three solicitors (seven or eight specialist lawyers) could not work out which part of Family Procedure Rules 2010 (FPR 2010) Pt 16 (not Rule ‘16 FPR 2010’) at r 16.6 or r 16.29 applied. Had anyone picked up the point that the children’s guardian appointment was unlawful (see definition of ‘specified proceedings’ at CA 1989 s 41(6)) the case would have proceeded under FPR 2010 r 16.6 (ie where ‘a child does not need a children’s guardian’).

 

If the child FW had not found a solicitor to represent her free, it is unlikely any of us would ever heard of this case. FW, against her wishes, and without the court taking account of her ‘views’ would have been forced to stay in care. The fact that her children’s guardian and her original solicitor – without any comment at any level of court – paid any regard to her ‘views’ and she unable to find her way through the scheme which Black LJ found ‘complex’ scheme is – surely? – worrying.

 

Other forms of children application

 

I will revert to the beginning of my list above – the child who, it was said of the 1989 Act, wants in 2019 to divorce her parents. Procedure must be found in two places. First, CA 1989 s 10(2)(b) and (8); and Chloe must know she is of ‘sufficient understanding’. As Black LJ said in Re W, there is no definition of what is ‘understanding’ in the legislation; though in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam), [2019] 1 WLR 4286 (18 March 2019), Williams J at [79] in that case drew attention to what he thought were aspects of CS’s understanding. That takes Chloe, secondly, to FPR 2010 r 16.6 (‘a child does not need a children’s guardian’). Chloe can make her own application to the court (eg to live with a neighbour or aunt, against her family’s wishes) if the court agrees; or if she can find a solicitor who will take on her case and who can obtain legal aid for her.

 

Next – categories (2) and (3) above – are similar in procedure to (1); but the steps Chloe must take in each are not clear as the 1989 Act and the rules stand. The end result for Chloe in each process is to find to find her way into r 16.6. Category (4) is the well-tested format of a child parting company with her children’s guardian, so her solicitor must take instructions from the child if the solicitor is content that the child is able to give ‘instructions on the child’s own behalf’ (r 16.29(2)).

 

All of these applications by a child depend on her knowing the application can be made; and of finding a lawyer who accepts that the child is of understanding. The recent experiences of the children in the Re W and Re CS cases, show that the view of a child is only indistinctly accepted by some lawyers and judges. W was 15 or 16 and CS nearly 13: to adapt Mark Anthony (in Shakespeare’s Julius Caesar) to children’s law: ‘understanding could be made of sterner stuff’).

 

‘Views’ of a child in English and Welsh law

 

And so to return to United Nations Convention on the Rights of the Child 1989, whose Art 12, it will be recalled, says:

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

From available reported case law, it seems likely that – with honourable exceptions: see eg Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 and Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (both considered in Part 1) – the English and Welsh family courts pay not even lip service to the Convention and Charter. For example in Re W neither are mentioned at all; and in Re CS the Convention was mentioned only as a quote from Mabon.

 

But to ‘assure to the child … [a] right to express views freely’ the child must know that the child has that right and how views are to be expressed. I do not think that the family courts system has even begun to do that. If I am right, for all the high aims of the 30 year old 1989 Act, Article 12 is meaningless and much of what the Act aimed to achieve is also meaningless (in terms of children’s rights) unless children of ‘sufficient understanding’ (CA 1989 s 10(8)) and who ‘are capable of forming [their] own views’ (Art 12.1) know they have the right, and how to exercise it.

Children’s rights after Children Act 1989: Part 1

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Royal Assent for Children Act 1989: November 1989

 

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989. Its thirtieth anniversary is approaching. Mostly, the Act came into force two years later (October 1991). It was a statute which required all courts, social workers and practising children lawyers (a breed which at the time was only just emerging) and most family lawyers, to learn a completely new set of legal concepts.

 

Much of the Act (Parts 1 to 5 and 10) required a profound re-thinking of the law and its underlying assumptions. For example the change from parental rights (signalled by the Gillick case (below)) to parental responsibility; the simple ‘significant harm’ concept for all care orders which only the local authority could apply for; the idea that in law a child of understanding was a person with rights and thus competent – perhaps with legal or other assistance – to be involved as an active party in proceedings.

 

This article looks at how the law in relation to children’s rights under the Act have moved in the thirty years since it received Royal Assent. Central to the subject of children’s rights is United Nations Convention on the Rights of the Child 1989 (the same year as the Act) whose Art 12 says:

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

Charter of Fundamental Rights of the European Union (2000/C 364/01), Art 24, goes a little further, by extending children’s rights expressly to actions of public authorities or private institutions. At the time of writing it is not clear for how long UK children will be directly entitled to protection from this Charter.

 

These Articles, though not part of the 1989 Act, can be taken as the golden metwand by which assessment of children’s rights in England and Wales over the thirty years after the Act can be judged.

 

Legal developments in the run up to the Act

 

In the ten years prior to the Act there were a number of significant developments in child law. First, in A v Liverpool City Council [1982] AC 363 at 372, (1981) 2 FLR 222 the House of Lords considered whether the wardship jurisdiction could be used to ask the High Court to review the exercise by a local authority of their operation of a care order. The House of Lords said no. Their view is represented by Lord Wilberforce who said:

 

‘… The court has no such reviewing power. Parliament has by statute entrusted to the local authority the power and duty to make decisions as to the welfare of children without any reservation of a reviewing power to the court. There are, indeed, certain limited rights of appeal as to the care order itself: under section 2 (12) of the Act of 1969 there is an appeal to the Crown Court against the care order;…’

 

This approach to responsibility for care orders is incorporated into CA 1989; but by the same token local authorities may not apply for wardship (which the Act calls ‘inherent jurisdiction’), save with permission from the court (CA 1989 s 100(3)).

 

Secondly, in the mid-1980s, came what was later called the ‘tandem model’ of child representation (advocate and guardian ad litem) in care proceedings; though early on it was found (a circuit judge decision in AR v Avon County Council [1985] FLR 252) that parents had no right to appeal against care orders: a double blow alongside A v Liverpool. The tandem model was developed extensively in CA 1989 Pt 4 and remains firmly part of the modern children law.

 

Thirdly, was Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 which remains common law of the highest authority on the development of a mature child’s understanding (in Gillick the ‘understanding’ was whether a doctor could provide contraceptive information to a child under 16 without her parent’s consent or knowledge: the answer was, yes); and of the way a parent’s right yields to a child’s right to make the child’s own decisions as the child ‘reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’ (per Lord Scarman at [1986] 1 AC 112, 186).

 

Finally, two years after Gillick came publication of the Report of the inquiry into child abuse in Cleveland 1987 Cm 412 London (HMSO) chaired by Elizabeth Butler-Sloss J. The Report was concerned with allegations of child abuse and of the ill-co-ordinated response of health authorities, social workers and police to the allegations. One of its clearest points was to emphasise that a child is a person, not just an object of concern.

 

Birth of Children Act 1989

 

As a Law Commissioner, Brenda Hoggett (the judge now known as Lady Hale, President of the Supreme Court) was closely involved with the development of the Law Commission reports, ideas and drafting of what became the 1989 Act. Amongst the Act’s more radical elements are:

 

  • To give children the right, if of sufficient understanding, to take part in litigation under the Act about them; and to affirm that every child involved in care and other local authority proceedings would be represented by a guardian ad litem (ie an independent social worker) and a solicitor in tandem;
  • To say in terms that the wishes and feelings of a child, the subject of proceedings, were factors the court must take into account when considering that child’s welfare;
  • To incorporate into one statute the private aspects of children proceedings (where and with whom they should live, for example) and the administrative law (which became known as ‘public law’: local authority care proceedings) components with, as far as possible, a consistent set of welfare principles to govern both; and
  • To provide legal aid for parents and children involved in care proceedings regardless of their means and of the merit of their case.

 

So how has the position of children’s court applications developed since 1991? Frankly case law has been sparse (since the early few children application cases). The common law has developed only hesitantly (mostly in the occasional decisions of Lady Hale since she arrived in the House of Lords (now Supreme Court)).

 

It was understood from early on that – Legal Aid Board (as it then was) permitting – a child could ask for permission to apply for the child’s own order under CA 1989 Pt 2 (‘a Section 8’ order); or, as the media called it, a child could ‘divorce her parents’ (as did CT in Re CT (A Minor) (Wardship: Representation) [1994] Fam 49, [1993] 2 FLR 278, CA who wanted to leave her adopted parents and to go back to live with her birth family, with whom she had retained contact). The child’s solicitor, with final say from the court, was the arbiter of whether a child had ‘sufficient understanding’ (CA 1989 s 10(8)) to make the application. In recent years reported decisions on children taking private proceedings are rare.

 

By 2005 two highly experienced family judges – Thorpe and Wall LJJ in the Court of Appeal – considered the rights of children to express views in proceedings between their parents in Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011. Parents of six children were engaged in residence order proceedings relating to the three older, boys aged 17, 15 and 13. They wanted to instruct their own solicitor to represent them for the hearing to resolve where they should live. The judge refused to grant the application for separate representation (now under Family Procedure Rules 2010 (FPR 2010) r 16.6(5)).

 

Allowing the boys’ appeal Thorpe LJ explained how the courts must adapt and recognise a developing attitude to children’s rights, their autonomy and to the court’s obligations to comply with them:

 

[26]   In my judgment, the rule is sufficiently widely framed to meet our obligations to comply with both Art 12 of the UN Convention and Art 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty­-first century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision-­making processes that fundamentally affect his family life.

 

Thorpe LJ drew attention to the need to balance the welfare of the child against the harm to a mature child which might arise ‘from denying the child knowledge of and participation in the continuing proceedings’.

 

Listening to children

 

A year later, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 Lady Hale, then in House of Lords, considered whether an eight year old Romanian child should be returned to Romania. Of a child’s views (see Arts 12 and 24 above) she said:

 

[57] … As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides…. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 Lady Hale (now in the Supreme Court) considered whether, in care proceedings, a 14 year old girl should be called to give evidence. The judge had said no. The Court of Appeal felt bound by authority to say no also. Lady Hale’s judgment reversed earlier law and made it clear that a child can give evidence, depending on the circumstances. She traced the variety of alternative forms of taking evidence in children proceedings and concluded that there are two factors as to whether a child should give evidence: ‘[24] … the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child…’. Guidelines in relation to children giving evidence in family proceedings of December 2011 [2012] Fam Law 70 followed this case; but nearly ten years later children law rule-making or authoritative guidance is no further forward than these modest ‘guidelines’.

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 of the Charter was considered in terms by Ryder LJ in the Court of Appeal. Had the child, David (aged 8), been given ‘an opportunity to be heard’, in Romania? If not was this ‘in violation of the fundamental principles of procedure in [an English] jurisdiction’. The court considered he had not been heard on parental responsibility (ie in where he was to live as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. Ryder LJ cited Art 24 of the Charter in full and related ‘fundamental principles’ of procedure to CA 1989 s 1(3)(a), that is, the ‘ascertainable wishes and feelings of the child’.

 

Section 1(3)(a) was a ‘fundamental principle’ on which the court’s discretion is founded and which no ‘parent can seek to avoid’. It therefore goes further than ‘a check-list factor’. It is, said Ryder LJ, ‘plainly an example of domestic jurisdiction giving force to a fundamental principle of procedure’.

 

‘A case about children’s rights’

 

CA 1989 was a clear, well-thought out and well-expressed piece of legislation which was broadly welcomed by anyone who came into contact with it. It was a credit to family law. A couple of years later a real blot on family law reform appeared on the statute book: Child Support Act 1991. Amended to twice its length, with infinite permutations of subsidiary legislation the 1991 Act is still there. It was designed for children’s benefit as well, but it gives them no rights or permission to be involved in its Kafkaesque administrative intricacies.

 

Early in her time in the House of Lords Lady Hale was in a minority of one in a child support case, namely R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42. Kehoe had decided, harshly, that a parent could not sue privately for their child’s maintenance. She could only wait for the Child Support Agency to fail, and then with appropriate funding she could apply for judicial review of the Agency’s dragging of its enforcement feet. Lady Hale started her speech by recalling childrens’ rights:

 

[49] My Lords, this is another case… which has been presented to us largely as a case about adults’ rights when in reality it is a case about children’s rights. It concerns the obligation to maintain one’s children and the corresponding right of those children to obtain the benefit of that obligation.

 

Children’s rights in 2019: thirty years on from Children Act 1989

 

So where are children’s rights 30 years on from the 1989 Act, and from the heady 1980s which gave child law Gillick, Cleveland, and the UN Convention?

 

First what are the rights in real terms and as a party to family proceedings (considered more fully at Ch 6 in Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional ). The contexts in which a child’s understanding is critical to their involvement in proceedings arise as follows:

 

  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); eg Re CT (above));
  • A child who wants to join in proceedings: that is to make a separate application (with or without representation in existing proceedings) (eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P).
  • Within existing private law proceedings, to dispense with a court-appointed guardian and proceed alone or represented by his/her own lawyer (eg Mabon v Mabon (above));
  • A child whose instructions to his or her instructed solicitor conflict with those of the children’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (FPR 2010 r 16.29(2)(a)); and
  • A child who wishes to pursue fresh applications alongside a care order made in earlier care proceedings and wants to instruct a solicitor where the child’s views conflict, or are likely to conflict with the children’s guardian (FPR 2010 r 16.29(2); Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 (‘Re W (Child’s Representation)’).

 

But, and this is a major ‘but’, a child only has rights if that child can understand what her rights are and how to exercise them; and over these two points hang substantial question marks. As will be shown Black LJ (now Lady Black in the Supreme Court) found the law as to a child’s representation in Re W (Child’s Representation) ‘of complexity’ (and, in the end, the Court of Appeal got the law wrong in that case). If Lady Black gets elements of the child representation rules wrong, what chance have the rest of us? And – which is what we are concerned with here – what chance has a child to find – and understand – the rights answers?

 

Finding the answers on representation and assessing the impact of Children Act 1989 on children’s rights will be dealt with in Part 2.

Anonymity for pole dancers

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Private hearing; but when to be anonymised?

 

If you have to tell a client whether their family court hearing will be dealt with anonymously or not (ie their names to remain confidential), the best thing they can do is toss a coin – certainly if their hearing is before a High Court judge. Hearings of family cases under Family Procedure Rules 2010 (FPR 2010) are – says a court rule (FPR 2010 r 27.10) – to be ‘in private’. That does not tell you whether your name will be public or not, save in the case of a child and (probably) of parents in children proceedings. Just because your case is heard in private is no guarantee your name will be kept secret.

 

For example, of all the first instance financial relief cases in front of High Court judges, over the past ten months, seventeen were reported; and of those seventeen, only four were anonymised. The remaining thirteen were all between named parties. Because the hearing is in private does not mean the parties will be anonymous. This proposition – the link between a private hearing and anonymity – draws support from CPR 1998 r 39.2 which treats as one step that parties may seek an order for a hearing (or part of it) to be in private (r 39.2(3)). Anonymity is dealt with as a separate application to the court under CPR 1998 r 39.2(4)).

 

In the Court of Appeal your name will unquestionably be public (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426), unless for exceptional reasons – see summary in CPR 1998 r 39.2(3) – you can persuade a Lord/Lady Justice you should be anonymous; or that the appeal is by or on behalf or about, a child or, perhaps other protected parties (CPR 1998 Pt 21).

 

Application for anonymity

 

So, on what basis can a party seek to be anonymous in civil proceedings? This was considered in detail by Nicklin J in AAA (and others) -v- Rakoff (and others) [2019] EWHC 2525 (QB) (30 September 2019). The case concerned claimants, nine of whom were dancers and at a club known as Spearmint Rhino (the tenth claimant).  They brought proceedings seeking to restrain the defendant from using video footage it had obtained within the clubs. The first defendant was the chief executive of the second defendant, a group called ‘Not Buying It’, which campaigns against sexual entertainment venues.

 

The finer CPR 1998 aspects of the case can be found at ‘Service of the claim form issues, anonymity, expedited trials and … Spearmint Rhino’ . This article looks at the question of anonymity which was the preliminary issue in the case dealt with by Nicklin J.

 

Nicklin J explained that any application for anonymisation has two distinct parts: first an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 1998 r 16.2 (‘a CPR 16 Order’: perhaps PD16A para 2); and, secondly, a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO). Though the law outlined here applies in family proceedings there is no equivalent to CPR 1998 PD16A para 2).

 

Nicklin J draws on the INDO guidance, especially paras 9 to 14. He then moves to a tour de force to summarise the fundamental jurisprudence which underlies the open justice principle:

 

‘[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.’

 

The judge cited recent case law, namely R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (considered further here). Both of these cases were concerned with release of court material to non-parties. Elemental to both was the open justice principle on which English courts operate.

 

Open justice principle and anonymity

 

From these two important cases Nicklin J concluded:

 

‘[29] … That there are principally two categories of case in which derogations from open justice can be justified: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated: Attorney-General -v- Leveller Magazine Ltd [1979] AC 440, 457E…[and see Scott -v- Scott [1913] AC 417 per Viscount Haldane LC at 437-439].’

 

The second category of derogation – relating mostly to private matters – was summarised by Nicklin J as follows:

 

‘[30] Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses….’

 

The judge has form in this area of work. In AAA he provides a text-book summary of the law on open justice principles. And he refers a couple of times to Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB), (15 February 2018). When you look up that case you discover Nicklin J is the judge there as well. In both cases he shows how firm is his grasp of the relevant case law.

 

The conclusion for AAA and her fellow pole-dancers was that they would be denied anonymity (it does not seem they claimed a private hearing). The anonymity remains pending any appeal, and pending the disposal of that appeal if permission is given for it.

 

Khan and domestic abuse

 

From a family lawyer’s stand-point Khan is instructive. It was a harassment case between two brothers where both were refused anonymity, and were told their case would be heard in open court. Nicklin J made the following comment, which may be instructive when it comes to domestic abuse cases in family courts:

 

[90] … In most harassment claims, the disclosure of private information in open court is simply an incidence of the litigation and that is no different from any other civil case. But, unlike privacy claims, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court…. An anonymity order therefore cannot be justified on that basis. If there are discrete pieces of the evidence, that engage significant Article 8 rights, then the way to deal with that is not by blanket anonymisation, but by [targeted measures]. Put simply, any greater derogation from the principle of open justice is not necessary.

 

If anonymity is denied to two brothers, why not the same for couples who have been living together, and one (or both) make allegations that the other has been abusive? Unless the privacy interests of children are engaged (concerning which see Keene LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at [120]-[122]), there is no reason why domestic abuse cases should be heard in secret; and probably every reason why they should be heard in open court.

Committal to prison and children proceedings: Part 2

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Release of court material

 

The first part of this two part series looked at the appeal in the unfortunate case of Re Nasrullah Mursalin [2019] EWCA Civ 1559 (3 September 2019) in the context of Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) and Family Procedure Rules 2010 (FPR 2010) r 12.73; and especially at the extent to which a committal application needs guilty intent. An application that the administration of justice has been interfered with – which is what a committal application is – is a criminal contempt which may result in the defendant (accused?) being sent to prison.

 

It is worth recalling that contempt proceedings, albeit in civil and family cases, are treated as ‘criminal’ proceedings under European Convention 1950 (Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81, 85 and 86) so that a respondent has the rights guaranteed by Art 6.3.

 

In NM’s case, Baker LJ first recalled the ‘utmost seriousness’ of contempt proceedings. Therefore strict procedural rules must be followed. He mentioned the words of Vos LJ in Re L (a Child) Re Gous Oddin [2016] EWCA Civ 173 at [75]: ‘The process of committal for contempt is a highly technical one as this case shows. But it is highly technical for a very good reason, namely the importance of protecting the rights of those charged with a contempt of court.’

 

In cases of an alleged contempt, Vos LJ said, no-one should be at risk of being sent to prison for contempt of court unless they have notice of what is alleged, they information that they may remain silent, and that the application is proved to the criminal standard.

 

Where the circuit judge went wrong

 

Baker LJ (at [17]-[21]) listed what went wrong in NM’s case:

 

  • ‘[18] The appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him; [and NM] says he did not understand the significance of what was being said.’ If the judge thought proceedings against NM were appropriate he should have set out exactly the particulars of ‘the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice. It was not sufficient for the judge to proceed simply because the appellant agreed that he could do so.’ (European Convention 1950 Art 6.3(a).)

 

  • ‘[19] The failure to particularise the allegations led to a further defect in the process. So far as I can see from the papers, the judge was never shown the specific documents from the family proceedings which had been disclosed to the First-tier Tribunal. In those circumstances, it was impossible for him to gauge the seriousness of the alleged breach.’ He was entitled to plead mitigation, but without these documents any plea would lack substance (see eg Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55 (30 January 2019)).

 

  • ‘[20] There is little sign that the judge considered the extent of the appellant’s culpability for what had allegedly occurred…. It does not seem to have occurred to the judge that [the solicitor for who NM was working] may have been the real culprit. That omission stemmed from the failure to particularise the alleged contempt.’ This is the mens rea point (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA) discussed in Part 1.

 

  • The errors above were compounded by the judge’s direction to the appellant to go in the witness box. It seems he overlooked the fact that a defendant to an application for committal is not obliged to give evidence. The principle is of long standing, although it has been overlooked in other cases; see, for example, the case of Re Lcited above (and see Dougherty (above); Mubarak v Mubarak [2001] 1 FLR 698).

 

And to cap it all, a cosmetic complaint: any committal application must be in open court Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, [2015] 2 AllER 541. No one was robed, the Court of Appeal was told.

 

Postscript: material which can be released

 

As a postscript to all this: what can be released in children proceedings under FPR 2010? Despite what the provisions of s 12(1)(a) appears to say – that it will be a contempt if material is published from children proceedings – FPR 2010 rr 12.73 and 12.75 allow for some release of documents from family proceedings.

 

The operation of r 12.73 can be seen in Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), [2015] 1 FLR 1218. Baker J (as Baker LJ he was the judge in Nasrullah Mursalin) was dealing with an application by the police who wanted to see a judgment in which he had recorded that the father of a child had admitted, after the making of a care order, that he had perpetrated the injuries on one of three children.

 

The father applied for an order prohibiting the local authority or any other party from communicating any information to the police or CPS. The police filed a statement asking for ‘disclosure of any information that had come to light in these proceedings indicating the perpetrator of [the child’s] injuries “in order that the decision to prosecute that person can be taken”’.

 

Baker J explains the working of r 12.73 and its accompanying Practice Direction 12G. Rule 12.73(1) says:

 

12.73 Communication of information: general

(1)     For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –

(a) where the communication is to [various individuals and bodies such as the legal representative of a party, Legal Aid Agency, a court appointed expert etc, formally entitled to receive information];

(b) where the court gives permission; or

(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.

 

PD12G provides three tables which set out what communications in children proceedings can be passed on to particular bodies or individuals. Paragraph 2.1 is the first of these and sets out a table which deals with ‘any information relating to the proceedings’. The rule and PD table enable information to be passed on by specified individuals as of right – for example, a party, a legal representative or others lawfully in possession of the information – to other individuals or bodies and for specified purposes, other than the proceedings (eg information to a person conducting ‘an approved research project’). Communications under r 12.73(1)(c) and PD 12G paras 1 and 2, which may be made. Other communications, which under 12.73(1)(b) may only be made with the court’s permission.

 

In S v SP and CAFCASS [2016] EWHC 3673 (Fam) Baker J dealt with a committal application by a father who objected to a Cafcass officer who provided information to police when asked. The judge gave short shrift to S’s argument that this passing on of information was ‘publication’ as anticipated by AJA 1960 s 12(1), and dismissed the committal application.

 

Procedure for a committal application

 

Given the state of the rules which govern all this, it is perhaps not surprising that judges make mistakes. An application for committal for NM’s mistake, is ‘interference with the due administration of justice’ (since case law tells us that that is what a breach of AJA 1960 s 12(1) is deemed to be). Anyone looking at the rules has to know this and to know, therefore, FPR 2010 Pt 37 Ch 4 applies – I think….

 

The application under this Ch 4 must be with permission (r 37.13(2)). Application is to a High Court judge (FPR 2010 r 37.14) for permission. If this is correct, why was HHJ Mordifar dealing with this case at all? Rule 37.15 tells you how to make the application for permission; and that is all Ch 4 tells you. Nothing is said about how the court proceeds with the application itself once an application has permission; nothing is mentioned about the points made by Baker LJ above; and especially nothing is said about service of any application. The accompanying Practice Direction PD37A gives some tips on procedure generally, but says nothing about Ch 4.

 

All this is only if an individual is making the application. If it is the court proceeding on its own motion, the rules are silent altogether (as far as I can see). This may have been how HHJ Mordifar proceeded; though it is not obvious from the Court of Appeal judgment on what basis Judge Mordifar thought he was proceeding – except that he seems to have been cross that the family proceedings document had got into the Immigration Tribunal bundle. But judicial crossness is not a good basis for a criminal charge against someone who seems to have made a genuine mistake; and to have had no intent to do anything wrong.

 

It is hardly surprising that cases like NM’s go so badly wrong.