Public hearings of family proceedings appeals

20160924_142217Open court principle and family courts appeals

 

In family proceedings some appeals (according to the level of court decision-maker) go either to the Court of Appeal (under Civil Procedure Rules 1998 (CPR 1998) Pt 52) or to a High Court judge (mostly) in the Family Court (Family Procedure Rules 2010 (FPR 2010) Pt 30). The level of judge an appeal goes to depends on a ‘routes of appeal’ table (not always easy to understand) in the Practice Direction (PD30A) to FPR 2010 Pt 30.

 

Appeals in the Court of Appeal are generally in public, those in the Family Court have been treated as subject to the rule that family proceedings are in private (FPR 2010 r 27.10); but since the new appeals system was set up on 14 April 2018 there has been a sporadic debate amongst judges and family lawyers as to whether appeals in family courts should be heard in private or in public.

 

From 10 December 2018 the debate is not finally resolved; but at least it has been put beyond doubt that a FPR 2010 Pt 30 family proceedings appellate judge (who will normally be a High Court judge) can order that an appeal hearing, or part of it, is to be ‘in public’. A new FPR 2010 rule, r 30.12A  is added to FPR 2010 Pt 30. This new rule does not say whether in future open court principles are to be preferred; but it puts beyond doubt the appellate judge’s powers to consider appeals in open the court.

 

The new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12A(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(c)) and to restrict publications of names of children parties and others. The rule does not say who asks for the hearing to be public; but the judge plainly has the power on his or her initiative to open an appeal hearing to the public.

 

Common law: hearings in private

 

Nothing is said in the new rule as to how the new public hearing powers are to be operated by the appeal judges. The general rule is that all hearings must be in open court. That is a very old common law principle (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417and eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618).

 

Beyond this, the common law sets out limited circumstances where the general open court rule can be overridden and a hearing be dealt with in private. These exceptions are fully summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3). Rule 39.2(3) is reproduced for certain family (ie divorce) proceedings in FPR 2010 r 7.16(3). Each of these three provisions reproduces the common law exceptions to the open justice principle (ie where cases should be heard in private); though they can most easily be seen in r 39.2 which – after recording that ‘the general rule is that a hearing is to be in public’ (r 39.2(1)) – then goes on to say where an civil case may be in private:

 

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;… or

(g) the court considers this to be necessary, in the interests of justice.

 

Of that list (a), (c) and (d) would have been recognised by the Law Lords in Scott; and with the First World War just over the horizon, they would have recognised (b) very soon.

 

Rule 39.2(3) (c) and (d) would cover most family hearings today. Children cases would remain in private, save perhaps were a public body was being criticised. Many family money cases might be private where publicity might damage confidentiality. Family proceedings appeal judges could deal with Pt 30 appeals, perhaps, with the r 39.2(3) list in mind, and as their starting point for a decision on whether to open up to the public their appeal court.

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Appeals in family proceedings: the rules diverge

20170407_185106Work out which court: spot the differences in procedure…

 

Rule-makers often make things needlessly difficult for parties to family proceedings. An example, for which there should have been no need if the rule-makers took a little care (and co-operated with one another) is for those involved appeals from family courts decisions. First, would be appellants in family cases, have the worry of working out which court they must appeal to – High Court family judge or Court of Appeal. Secondly, they must be clear which set of rules – Civil Procedure Rules 1998 (CPR 1998) Part 52 or Family Procedure Rules 2010 (FPR 2010) Part 30 – applies to their appeal. (The first dictates the second.) For parties who are doing their own legal work – that is, litigants in person, who account for up to 40% of appeal cases, it is said – just to start an appeal under this separation of courts and their procedures must be a challenge.

 

Beyond this there is an increasing divergence of appeals procedures for appeals in the family courts governed by the two sets of procedural rules. It should not have been beyond the wit of the rule-makers to ensure that all family proceedings appeals were governed by the same set of rules, in the Family Court, the Family Division of the High Court and in the Court of Appeal? But no. Appeals from magistrates and lesser judges in family proceedings go to higher judges, but still in the family courts. Appeals from higher family judges go to the Court of Appeal. A person appealing against any magistrate’s or judge’s decision must know to which level of court to appeal since – and this is the main purpose of this article – the first type of appeal proceeds under one set of rules (FPR 2010), and the second under other rules (CPR 1998). Each was drafted in much the same terms originally; but increasingly the framework of the rules for of such appeals is altering away from each other.

 

Appeals in family proceedings: Court of Appeal and family courts

 

First, a little history. In 1998 Lord Woolf’s rules committee published a new set of rules for civil proceedings – CPR 1998. These rules were intended to be clearer than the earlier 1965 rules, as this was mostly the case. Until 1998 all family proceedings had been dealt with as civil proceedings under the previous civil proceedings rules (Rules of the Supreme Court 1965) as varied by any relevant family proceedings rules (then Family Proceedings Rules 1991). That remained the case for family proceedings after 1998.

 

Meanwhile in 2000, a new CPR 1998 Part 52 introduced rules for appeal to the Court of Appeal. As an exception to the general rule – that CPR 1998 could not apply to family proceedings generally (CPR 1998 r 2.1(2) – Pt 52 applied to all appeals to the Court of Appeal in family cases. That remains the position with Court of Appeal appeals today.

 

In April 2011 a new set of family proceedings rules (ie FPR 2010) was introduced for all family proceedings (and to replace FPR 1991). Family cases had their own set of rules. But these rules were a mixed adaptation of old rules (such as those for financial relief proceedings which had come in with their own style of drafting and tenuous regard for the law in 1996); and of restyling of CPR 1998 (eg for interim applications (CPR 1998 Pt 30 parallel with FPR 2010 Pt 20), evidence (CPR 1998 Pts 31-35 parallel with Pts 21-25) and appeals (Part 30 as explained later)). In certain areas there were brand new rules (eg divorce (FPR 2010 Pt 7 and children proceedings (FPR 2010 Pts 12 and 16)).

 

FPR 2010 had its own appeal rules within family proceedings, namely Part 30: that is for appeals from a lesser judge to a higher, but within the family courts. Part 30 was originally modelled almost word for word on CPR 1998 Pt 52; but then it began increasingly to move away from Pt 52, though within the family courts. No longer can an appellant, or their adviser, assume that its parallel is the same as the other. Since 22 April 2014 appeals from many circuit judge and district judge decisions is to a High Court judge.

 

Three examples of the divergences between Pt 52 and Pt 30 follow.

 

Appeals practice directions

 

First, appeals practice directions. Most rules do not stand alone. They are backed by practice directions which are a form of semi-delegated legislation which exist in an ill-defined regulatory no man’s land between rules and guidance. Rules depend on practice directions for their operation, but – especially in family proceedings only – Lady Justice Hale (as she then was) has said they are ‘probably not made under any statute at all’ (Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602); though outside family proceedings they must now have the authority of the ‘Lord Chancellor’. In October 2012 the practice direction for civil appeals was amended in its entirely and was replaced with five sets of new practice directions (the first four of which can apply in family proceedings): Practice Direction 52A-52E.

 

The practice direction to FPR 2010 Pt 30 remained – and still remains – the same in outline; though it has been redrafted since the provisions in Pt 30 were introduced in April 2014 which enabled lower judge decisions to be appealled against to a higher single judge (see eg Practice Direction 30A – Appeals para 1.2).

 

Secondly, with effect from October 2016 the rules in CPR 1998 Pt 52 were completely overhauled. Most of it remained much the same; but significant provisions changed. These were not necessarily changed in the hitherto more or less parallel FPR 2010 Pt 30. For example, the new r 52.3 has deleted the right of an appellant who has been refused permission on paper by a single judge in the Court of Appeal to go back to the court itself and to ask it to reconsider a grant of permission to appeal (see discussion in Goring-on-Thames Parish Council, R v South Oxfordshire District Council [2018] EWCA Civ 860, [2018] 1 WLR 5161). Now, if you are refused permission to appeal by the judge who made the original decision and by a Court of Appeal judge on paper, that is an end of your appeal. By contrast appeals to the Family Court can be reconsidered by a judge in the appellate court (as was the old rule in the Court of Appeal).

 

Family appeals: in private or in public?

 

A third divergence is that separate rules are to be introduced for the hearing of Family Court appeals. From 10 December the family judge can order that an appeal hearing is to be in public. Most family proceedings hearings are in private; whereas almost all Court of Appeal appeals (save eg in children cases) are in open court (recently explained by Lady Justice Gloster in the Court of Appeal in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 ). A new rule – FPR 2010 r 30.12A – is to be added to Pt 30 to enable a judge to say that an appeal should be heard in open court (ie ‘in public’). The present position on open court hearings in family proceedings is not always clear. Different common law principles and court rules (in the case of family proceedings) apply according to whether an appeal is in the Court of Appeal or in the Family Court or Family Division under Pt 30.

 

For appeals which are in the family courts under FPR 2010 Pt 30, the judge is likely to expect that, in accordance with the general rule in family proceedings, most hearings will be in private (r 27.10). However, the new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(2)(c)).

 

No more is said by the new rule as to how the new open court powers are to operate. For example what factors should the judge take into consideration when deciding whether to open the court to the public? There are a number of bases set out in case law (ie common law) which suggest how a judge might decide on making the court open to the public (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417); and there are three statutory lists which develop and categorise the common law privacy exceptions (Administration of Justice Act 1960 s 12(1); CPR 1998 r 39.3(2) which is reproduced in the third list for divorces at FPR 2010 r 7.16).

 

As matters stand Family Division judges cannot decide between themselves as to when case should be in private or in public, and when parties (other than children) should be anonymised in family proceedings. We will have to see how this rule – which must surely operate to mirror common law provisions generally? – beds down; and how it is operated by the High Court judges who sit on these family proceedings appeals.