Family proceedings at a time of coronavirus: Part 2

20170407_185106

Fair and remote hearings

 

Two subjects loom in these coronavirus times; practice directions and guidance; and how to manage fair (public or private) hearings. A debate about online court hearings can follow later. I wrote a first post on practice direction here and ended by recalling that formal practice directions can be made only by the President of the Family Division in consultation with the Lord Chief Justice (Constitutional Reform Act 2005). Local practice guidance may be well-meant; but on what statutory or other authority can it operate or be enforceable?

 

For example how does a party respond to HHJ Dancey’s minatory direction (for Dorset: as is the picture above) that ‘it is incumbent on all parties to try to resolve cases…; and that ‘parties may be asked to explain what steps they have taken to try to resolve their case’; or HHJ Wildblood’s direction in relation to ‘private law’ (ie Children Act 1989 Part 2) proceedings as to who – on his direction – ‘must’ prepare court bundles and that ‘There must be a directions hearing before the judge of trial at least 48 hours prior to the substantive hearing at which, among other things,  directions will be given as to the arrangements for the hearing’.

 

One of the golden rules of rule-making, or indeed of making a court order, is not to make the rule or order if it cannot be enforced. What are the rules for these directions if they are not complied with? For example the duties imposed by HHJ Wildblood as to who is to take responsibility – namely HMCTS staff – where both parties are unrepresented (para 6(iii):

 

Where neither party is represented, the court office must liaise with the judge of trial at least 72 working hours before the hearing and the judge must give directions for how the hearing is to be conducted. In default of specific direction from the judge the court must arrange for such hearings to be conducted by telephone.

 

Will the court staff which are intended to comply with these directions, do as they are told; and if not, what do I as an unrepresented parent, do about it? Who at the court is personally responsible; and what is their email address and telephone number?

 

‘A fair trial’

 

Courts, as a public authorities, must not act in a way ‘which is incompatible with a European Convention right’ (Human Rights Act 1998 s 6(1)). The right in play here is Art 6 which says:

 

Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The main essentials of a fair trial at common law are procedure and how the judge determines the issues before the court. Each side must have notice of any steps in the proceedings and must have a fair chance to adduce all relevant evidence before the court. The crucial aspect of a fair trial is that the judge (or magistrates) impartially hears both sides (audi alterem partem).

 

If justice in times of coronavirus achieves all that distantly, then the first ‘fair trial’ part of Art 6 is achieved. Judgement can be given. The question of ‘publicly’ will then be the challenge for court administrators. Hearing in ‘a reasonable time’ – an often forgotten component – can be worked towards.

 

Administration at times of coronavirus: a team and a leader

 

So with technological ingenuity, openness can be achieved; but what about administering all this. Here we come back to all the local practice directions.

 

Imagine first that you are running a difficult case or trying to win a team sport (rugby, football etc). In each case it is important to have one person making all the strategic decisions: leading counsel, a senior solicitor, the team captain. Some actions, even minor decision making, may be delegated to, for example, lesser lawyers or paralegals in the difficult case. Their work is tactical on sections of the work in hand (preparing statements from witnesses, putting together a bundle and so on). Strategy remains with the head lawyer in the case of the heavy litigation.

 

So too it is with running a series of family courts. You cannot have individuals in separate courts putting up procedural rules. That is a matter of strategy for the leading person. Still less can they be putting out guidance without clear legal authority (as mentioned here). That is a matter for compliance with the law and calls for what Parliament permits (Constitutional Reform Act 2005).

 

It is also important to reflect on what judges are for. They are there to determine claims or applications before the court. They are not there to administer the courts in which they sit. That is, or should be, for court administrators. It is a basic question of separation of powers. A judge is judiciary. That judge’s power is separate from the executive (HM Courts and Tribunal Service: ie court administration). And it is separate again from legislature (in this case the making of rules and any necessary practice directions/guidance). In an individual case the judge is responsible for case management; but for generalities it should be for the ‘legislators’ (within their own powers: Courts Act 2003 s 75) to make rules and practice direction.

 

President of the Family Division

 

The President of the Family Division fits uncomfortably into all this. Just as did the Lord Chancellor before the Constitutional Reform Act 2005 the President spans three powers: he is a judge; he is a legislator (see practice directions below); and he is part of the family courts administration. The powers need separation; but needs must for coronavirus times. One President cannot long-term do all that is required by his present job description.

 

For now, the President is the strategic head of family courts (per the illustration above). He, and only he (with the Lord Chief Justice), has the power to issue practice directions (as explained in Part 1). That, in a sense, is a legislative and an administrative role; save that once practice directions are made it is for HMCTS and us and parties to litigation to operate them.

 

Lucy Reed touched on the practice direction point in a recent blog of the recent guidance issued by the President of the Family Division on remote and face-t-face hearings Guidance issued by the President of the Family Division: ‘There is other guidance in different jurisdictions and lots of (inconsistent) local guidance too), but it’s just guidance, and it makes clear that decisions will be made on a case by case basis i.e. it anticipates that some face to face hearings may still take place.’

 

The issue remains: if practice directions – especially local practice directions – do not comply with the law, they are not lawful. Whoever made the practice direction – judge or anyone else – is acting as public authority decision-maker (ie a civil servant). They – judge or other administrator – is subject to the usual administrative law rules. This was the point made by Lord Wilson in NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962 (30 October 2019) referred to in Part 1. It is the law which must be followed (as set out in the common law, in Family Procedure Rules 2010 and in properly made practice directions). The law always trumps a practice direction of practice guidance.

 

David Burrows

27 March 2020

 

Local family courts guidance in time of Covid-19: Part 1

20160924_142217

‘Different rules, different areas’

 

What follows may seem ungrateful at a time when people – especially judges and hard-pressed court administrators – are doing what they can to respond to the coronavirus pandemic. Even so, all of us are entitled to ask, if the rule of law is to be preserved through a crisis – when, above all times, it must be preserved, surely? – what powers do individual judges have to declare unilateral independence (UDI) and issue their own local rules? It sounds curmudgeonly to ask; but is it fair to wonder how may of these local guidances are lawful certainly where they seek to change the law or procedure?

 

In the last 24 hours or so I have read:

 

 

And now a short document from HHJ Wildblood in Bristol has just arrived…

 

The first of the above list is an official guidance from an impeccable source, Sir Andrew McFarlane P. The second short document for some reason leaves out the poor family courts. The third is truly impressive. It seeks to regulate nothing, but brims over with practical ideas as to how remote hearings – mostly in family courts – can be taken forward. (It does seem crazy that, though it is the same common law and mostly the same rules, true apartheid operates between family and other civil courts. As Sir James Munby P (the Munby LJ) once remarked acidly, it is one High Court and one common law….)

 

Powers to change procedural rules

 

I am troubled as to what powers has a circuit judge, like HHJ Dancey – enormously well-meaning though I am sure he is – to seek to regulate the courts in his county, or to try to change the law (as I think he does). He is not a court administrator, he is a judge. One is part of the executive, the other of the judiciary; and the two should be kept more separate; and clarity on this must be kept predominant in times such as these. I will come back to that.

 

What power does anyone beyond the President of the Family Division (with Lord Chief Justice) and Family Procedure Rules Committee have to do more than get on with their job according to the rules and any practice directions/guidance from the President or procedural law already set down in rules? And getting on with a judge’s job means judging. It is for court administrators and rule-makers backed – as need be – by the President, to administer the system.

 

In an individual case – mostly now to be heard remotely – a judge must determine individual, case based, aspects of case management and the outcome of the issues for trial. Otherwise we go back to how it was pre-1999 (ie before the CPR 1998) when individual courts could have their own rules; where you might have to find out from local courts how you should proceed with a case you had there. It was the Wild West; and now it seems, at the worst of times for it too happen, local judges may be reverting to that.

 

‘Different provision for different cases or different areas…’

 

When Civil Procedure Act 1997 came in Parliament deliberately included a provision, in Sch 1 to the Act, which said rule-makers could make different provision for different courts.

 

Different provision for different cases etc

7 The power to make Civil Procedure Rules includes power to make different provision for different cases or different areas, including different provision—

(a)for a specific court or specific division of a court, or

(b)for specific proceedings, or a specific jurisdiction,

specified in the rules.

 

Exactly the same provision appears in Courts Act 2003 s 75(4) for courts covered by Family Procedure Rules 2010 (FPR 2010). As can be seen, it is the rule-makers who make different provision for different areas or different types of case, not individual judges. In that context rule-making includes practice directions issued by the President of the Family Division, as Sir Andrew McFarlane P has done with his COVID 19: National Guidance (above). The COVID 19 guidance records that it is issued (as is required by Constitutional Reform Act 2005) ‘with the approval of the Lord Chief Justice and the Senior Presiding Judge)’; and goes on ‘the guidance is intended to be followed with immediate effect by all levels of the Family Court and in the High Court Family Division’.

 

Practice direction (and guidance): ‘no legislative force’

 

In Re NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962 (30 October 2019) Lord Wilson said this of practice directions and their effectiveness in a case where he was considering the extent to which a family court had any inherent jurisdiction:

 

[38] The Family Procedure Rules 2010 [(FPR 2010)] are made pursuant to section 75(1) of the 2003 Act and so have legislative force. But 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] 1 WLR 2657 (at [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.”

 

Any litigant is entitled to query any practice direction which appears not to be in accordance with the law. It times of crisis this right is surely as important as in any other? However, if judges below the President exercise constraint and recognise their procedural law-making abilities, then such querying or challenge should be unnecessary.

 

Law-making must hold together

 

The hierarchy of delegated legislation descends from statute at the top of the tree. In the case of Family Procedure Rules 2010 the power to make them is delegated to a rules committee by Courts Act 2003 s 75 (as mentioned by Lord Wilson). A number of cases before and after U v Liverpool have attested to the limited nature of practice directions (see eg Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602; Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274).

 

Practice directions are to be made only by the President of the Family Division in consultation with the Lord Chief Justice (Constitutional Reform Act 2005). Below that we have what the late Sir William Wade described, in Administrative Law (2014) Wade & Forsyth, as the jungle of sub-delegated legislation. Below that we are now seeing ‘local practice guidance’. But does this not risk destruction of the rule of law in the courts where this happens, just at a time when it is most important that the rule of law holds together?

 

It may be well-meant; but on what statutory or other authority does any local practice guidance operate? This will be considered in the next post by reference to specific guidance.