Domestic abuse and secret courts

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Why not open court for all domestic abuse hearings

 

This post is written in the light of the recent JH v MF [2020] EWHC 86 (Fam) (22 January 2020), Russell J (where the judge was highly critical of a family courts judge and his approach to lack of consent of a young mother to sexual intercourse in a domestic abuse trial). Others have written about various aspects of this case (eg Suesspiciousminds at ‘Bad feng shui and bad judgment’ https://suesspiciousminds.com/2020/01/22/bad-feng-shui-and-bad-judgment/ and Civil Litigation Brief at ‘A decision that was “unjust because of serious procedural irregularity and multiple errors of law”: when decisions are not based on the evidence’ https://www.civillitigationbrief.com/2020/01/22/a-decision-that-was-unjust-because-of-serious-procedural-irregularity-and-multiple-errors-of-law-when-decisions-are-not-based-on-the-evidence/. I intend to concentrate on open court – or ‘transparency’ – aspects of domestic abuse court hearings.

 

The question which arises from Judge Tolson’s behaviour relates directly to how domestic abuse cases are dealt with by all common law courts (not just family courts) in the future. The question becomes much more than one of ‘transparency’ (which in reality is a euphemism for how far secrecy is permitted in any court). For a variety of reasons (see also my https://dbfamilylaw.wordpress.com/2019/01/23/open-justice-and-domestic-abuse-court-hearings-now-and-under-the-bill/ ) it is important to be clear how abuse allegations are dealt with in the variety of courts which may be dealing with them.

 

We must now be asking of judges like Judge Tolson (who tried the JH v MF domestic abuse case at first instance) when they operate in secret: why we are surprised that some judges behave so badly; and, as in this case, why do they project an early 20th century – even 19th century – approach to rape and sexual offences? And – it must be added – Judge Tolson is not the first family judge I can point to who, over the past year, has taken judicial steps which are unlawful and who should properly be supervised by press and other lawyers if our family law system is to preserve any form of credibility.

 

And how many men (it will mostly be men) will go on acting again and again (with different partners) in a way which is abusive, if they know they will always be dealt with in secret by family courts?

 

Domestic abuse: which court, what procedure?

 

This leads to the question: how does our domestic abuse law and procedure apply on the same facts to three completely separate areas of law:

 

  • A possible criminal trial prosecuted by the police (open court: jury in the crown court)
  • Damages proceedings in the civil courts (open court)
  • Domestic abuse proceedings in the family courts (secret)

 

It must be recalled that the third of these – the domestic abuse in the family courts – might also be tied up also with private court children proceedings (as was JH v MF). And I cannot see that our legislators have done anything to try to put this procedural jungle right in the two – so far abandoned – domestic abuse bills which Parliament have started on since early 2017. (When I was first in practice the only way to get a domestic abuse (as it then wasn’t called) injunction for an unmarried partner was on the tort of assault (ie (2) above); but have we really come that far in those 40+ years?)

 

In 2020 all civil courts, including family courts, are familiar with the concept of separate trial of one or more issues. Domestic abuse is a separate issue from (say) what is to happen to children. There is no reason to try issues of domestic abuse at the same time as dealing with the welfare of children. For example, though in JH v MF the issues of domestic abuse arose in the context of a father’s claim concerning his child, there is no reason why the judge should not have dealt with domestic abuse as a separate matter, set down for a separate hearing.

 

From there it would be a short step to say liability in tort ((2) above: the harassment or assault damages claim) should be put over to another day for damages to be decided in open court (save if children are directly involved), and based on the findings of the preliminary hearing.

 

How a criminal trial can be dealt with is more difficult since the procedures in criminal courts – all this has to be dealt with now under three separate sets of procedural rules – are so different from those in civil (and family, where different) courts. Most starkly, the standard of proof (considered for domestic abuse family proceedings by Russell J at [55]-[58]) between civil and criminal, is different. This must be the subject of a separate post.

 

But on a post for ‘Transparency Project’ the question arises: if the issue of domestic abuse is – as it must surely be – dealt with as an issue separate from other family matters (such as children), why cannot it be dealt with entirely as a discrete or separate trial.? That trial can be – must be, surely? – in open court, as with any criminal aspect of the case. There is no reason at common law (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417) why it may not be. (It is accepted that in a family court the media could be present even though the hearing was in secret (Family Procedure Rules 2010 r 27.11(2)(f)); but that misses the point. It does not make the hearing public as understood by the common law and as happens in all other courts concerned on the facts alleged.)

 

Open court hearings

 

The main case – still frequently referred to – on open court hearings is a family case namely Scott (above). In that case, over 100 years ago, the House of Lords (judicial branch) said that all cases, except for a very narrow number of examples (including children cases) must be in open court. Why? Because it is important – and this is still the law today – that people be able to see and hear (if they wish) what is being done by judges in their name. This is so – subject to a few very narrow exceptions (which might include the vulnerability of a witness of party: though in open court their evidence could be by video-link) – even if a trial might cause embarrassment.

 

In Scott v Scott Lord Atkinson (one of the five judges) said:

 

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

 

Scott was a case about nullity of marriage on grounds of non-consummation. It was up there in terms of embarrassment; but still, in 1913, it should be public (though would not be today). The point is, to balance any humiliation with the public good of trials being open. Open trial must normally take priority. And, given that on the same facts, a case will be heard in public if for damages and criminal, but in private if on the application of a complainant. Where is the logic of that?

 

And if Judge Tolson had not sat in secret, it is important to reflect that his decision might have been different (though publicity did not deter him from brushing off Mrs Owens’s complaints as to her husband’s alleged behaviour: Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067 when it ended in the Supreme Court). An open court hearing might have encouraged him to ensure disposal in accordance with Lord Atkinson’s ‘pure, impartial, and efficient administration of justice’? Who knows?…

 

Now is the time, surely – especially with a domestic abuse bill somewhere in the offing – to challenge the question of where and how openly domestic abuse cases are to be tried?

 

David Burrows

23 January 2020

 

 

Open justice: when is secrecy lawful in family proceedings? – Part 3

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(3) CAN A FAMILY COURT DECIDE WHETHER A COURT RULE IS VALID

 

This series asks to what extent is the provision in Family Procedure Rules 2010 (FPR 2010) r 27.10 that all family proceedings (save where rules say otherwise) must be heard in secret (‘private’) within the powers of the rule-makers? And this Part asks: in what court an applicant who wants to challenge the validity of the secrecy in r 27.10 makes that challenge? The short answer is that the challenge to a rule’s validity can be made in the court (here the appropriate level of family court) in which the question arises. (As has already been explained in Part 2, it is doubtful whether the rule-makers can lawfully say that some family proceedings should be private, such as domestic abuse proceedings.)

 

This question follows on from Part 1 which considered what the common law – applicable in all English courts – says about hearings in open court.?

 

Domestic abuse proceedings in the Family Court

 

The illustration behind this final Part is family proceedings in which a man (B) is alleged to have been violent to a complainant woman (C) whom he lived with. She made a statement to police under Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, March 2011, Ministry of Justice   (ABE procedures) which can be heard in court. The police have statements from neighbours in which they speak of hearing her screams and of noises which are consistent with what she has said to the police.

 

B is a local footballer (relatively well-known in the local press). He made a statement to the police in which he denied what she alleged. Statements were made to the police by his fellow players that they had seen C being abusive towards him when she was drunk, and how restrained he had been. The police have not yet decided whether to prosecute.

 

C seeks protection for herself, and to exclude B from their home for her and for the sake of their 3 year old child. She applies to the Family Court. Two members of the local paper would like to attend court; and A, a friend of C, believes that she is entitled to attend court to hear the case. Each want to read the statements prepared for the case. A would like to be able to speak to the local and national press after any court hearing.

 

Application to attend court

 

In this case there are three categories of individual who may want to come into court:

 

  • Friends, family or other contacts of a party to the proceedings;
  • Non-parties who for professional reasons want to attend and write about or otherwise discuss the case: say a journalist or a legal blogger (they may be entitled to come into a family court (FPR 2010 r 27.11(2)(e)); but what they think they can publish may be limited (Administration of Justice Act 1960 s 12(1)); and
  • Member of the general public (ie someone who is not a party to the case or otherwise involved in any way) who just want to come into court.

 

On whether a hearing should be ‘in private’ or not, FPR 2010 r 27.10 says:

 

27.10 Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise.

(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.

 

If any of those who want to go into court, but they are excluded but they think they should have been allowed in, what can she do about it? In what court should any challenge be made; and what legal principles direct the way in which any application – in whatever court – should be disposed of?

 

Is the case open court: a matter of administrative law

 

The principles which govern whether a rule or other direction is valid (in this case whether a case is heard in open or in secret) are dictated by administrative law. First how can the powers of rule-makers be challenged; and, secondly, how can a wrong decision of the court or its administrators to exclude anyone be challenged?

 

In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ (sitting with Peter Gibson and Mance LJJ) considered these questions. In Howker a benefits provision was found to be invalid, and it was held the Commissioner could have made findings on Mr Howker’s appeal to the Upper Tribunal (as it would now be). She pointed out (at [51-[52]) that there were two categories of case where the validity of delegated legislation might be challenged. First was where administrative acts are aimed at a particular person (see Stannard (below)). The second is where subordinate legislation is of general character (ie directed at the world at large) (and see Lord Irvine LC in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 at 161, considered below).

 

The question for a court or administrative tribunal, as Hale LJ explained in Howker concerns the extent of the jurisdiction in the court to hear and decide on validity:

 

[52] … It has been clear since Chief Adjudication Officer v Foster [1993] AC 754 that there is jurisdiction to entertain challenges to the validity of social security regulations in the course of the social security appeal procedures. The question is not, as it was in R v Wicks [1998] AC 92 and Boddington… whether the commissioner could entertain the challenge. The question [here] is whether he was right to reject it….

 

That is to say, if a question of validity of secondary legislation arises, can the question be dealt with in the court where it is raised?

 

Boddington and a collateral challenge

 

In Boddington, the case on which most of the discussion in this Part depends, the background was that Mr Boddington was prosecuted for breach of a byelaw which was said to prevent him from smoking on a train. He contended that the smoking ban was ultra vires the railway company as it went beyond the company’s statutory powers under the Transport Act 1962.

 

The House of Lords held that the stipendiary magistrate had been wrong to rule that Mr Boddington could not raise the vires question as a defence to the criminal charge, because, on the true construction of the statutory provisions, Parliament did not intend to exclude that defence to such a criminal charge. It was emphasised that the first time Mr Boddington had a sensible opportunity to challenge the vires issue was when he was charged with breach. (He had not raised it on judicial review.)

 

So was Mr Boddington entitled to challenge the validity (vires) of the bye-law under which he was prosecuted in the court which dealt with his criminal charge? The House of Lords said, yes he could make a collateral challenge in the criminal proceedings. It was not necessary for him to take separate judicial review proceedings. Lord Steyn explained this (at 175):

 

… Allowing a collateral or defensive challenge ‘avoids a cumbrous duplicity [etc, see above] as Lord Bridge put it in [Foster (above)]. In any event, expediency is not a sufficient and proper basis for taking away by judicial decision part of the jurisdiction of magistrates’ courts to rule on issues pertinent to the guilt or innocence of defendants….

 

Challenge to the validity of subsidiary legislation

 

Lord Steyn pointed out that if courts could not deal with the validity of subsidiary legislation, they might be left in the position of having to ‘convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge’. This would involve ‘an injustice which cannot be tolerated in our criminal justice system’. Not to permit a collateral challenge was a state of affairs which Lord Steyn found (at 173) to be too ‘austere and indeed too authoritarian to be compatible with the traditions of the common law’.

 

Mr Boddington’s appeal ultimately failed because the House of Lords held that, under the relevant statutory provisions, the rail company did have power to impose a total smoking ban. The House held, however, that the magistrate would have been entitled to hear the collateral challenge to the vires of the bye-law under which he was prosecuted.

 

In Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 the Queen’s Bench Divisional Court (Hickinbottom LJ, Whipple J) held that, likewise, the court which tried an offence against community protection notice (CPN), was not obliged to consider the appropriateness of the notice where a defendant had not appealled against it when the notice was first made. Boddington did not apply, said the Divisional Court, because the CPN was specific to an individual and to his behaviour.

 

Friends, family or supporters not permitted attendance at court

 

Finally is the case where the court or its staff (HM Courts and Tribunal Service: HMCTS) excludes individuals who were entitled to be in court, but were kept out of any hearing. Matthew O’Connor (MO) was – perhaps still is – a leading member of Fathers4Justice (F4J). He was due to be tried by magistrates for a public order offence. Court managers heard that there might be a demonstration at the court and decided to bar anyone who might be associated with MO unless they were listed as defence witnesses. When MO and others interested in attending his trial – eight to ten people – attempted to enter the court building, only MO and his lay representative were permitted entry. MO applied to the court for those excluded to be admitted on the grounds that he was being denied the right to a public hearing. This application was refused after advice from the justice’s legal adviser, and that a properly authorised court manager had taken the view that there was a risk on grounds of safety and security.

 

In R (O’Connor and anor) v Aldershot Magistrates’ Court, QB Divisional Court, Fulford LJ, Leggatt J) [2016] EWHC 2792 (Admin), [2017] 1 WLR 2833 MO and two of those accompanying him applied for judicial review of the magistrates’ decision; and the magistrates agreed to adjourn his hearing before them so he could apply. The Divisional Court (the judgment was of both judges) recalled the open justice principle (at [25]) by reference to cases such as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531, [2011] 3 WLR 388 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618; and they set out the words of Jeremy Bentham (Collected Works, vol 9, p 493 and vol 4, p 316 (respectively):

 

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate.

 

Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.

 

‘Importance of openness and transparency’

 

And the judgment emphasises (at [25]) that: ‘The authorities also stress the vital importance of openness and transparency to maintaining public confidence in the fairness of the justice system.’

 

Neither the court administration (HMCTS) had the power to exclude from the court building nor did the court have power to exclude from the court itself. The Divisional Court concluded: if exclusion is ordered, any application to deal with that should be dealt with by the court (not the administration) when it arises; and not by judicial review (see Lord Bridge’s comments in Forster, above):

 
[34] … Where a member of the public is seeking to attend a particular court hearing and there is a dispute or room for dispute about whether they have the right to do so, that question should be decided by the court concerned at the time the question arises. If a person is wrongly being denied entry, they should not be left in the position of having to incur the substantial burden of bringing proceedings after the event to vindicate their right, when the opportunity to be present has been lost.

 

And the court which should deal with any such application?

 

[34] … Furthermore… decisions to exclude members of the public potentially affect the fairness and validity of the court process. It is therefore integral to the court’s ability to control its own process that such decisions are taken by the court.

 

The justices’ decision to uphold the exclusion from the court building was ‘flawed’ (at [39]) and a declaration that their decision was unlawful followed ([53]).

 

The Family Court: court ‘to control its own process’

 

O’Connor was a criminal trial (as was eg Boddington). Forster and Howker (above) concerned what would now be the Upper Tribunal (where, even in child support cases, the open justice point does not arise: all hearings are in open court: Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 r 30(1); Tribunal Procedure (Upper Tribunal) Rules 2008 r 37(1)). Does it make any difference that an application in family proceedings to challenge FPR 2010 r 27.10 is in not in criminal nor tribunal proceedings?

 

The answer is not clear; though in O’Connor the Divisional Court spoke as if they were envisaging open justice in any court – criminal or civil – being a matter for that individual court to decide. They spoke of attendance as a matter of right at any ‘public court hearing’ (see eg [28]).

 

The question here is whether a hearing in a family court, specifically of domestic abuse proceedings, may be public; or are they secret unless the rules (not, as the rule-makers see it, either common law or statute) say otherwise. That takes this article back to the examples of those who might want to attend court set out earlier, and who might want to challenge the assertion in FPR 2010 r 27.10 that the family court must sit ‘in private’ save where rules say otherwise.

 

Domestic abuse: hearing in open court?

 

Each of the individuals in the categories below believes that the law is that proceedings under Family Law Act 1996 Pt 4 (domestic abuse) and as explained in Parts 1 and 2 of this series should be in open court.

 

(1)        Friends, family or other contacts of a party to the proceedings

 

Here application can be made by the applicant (C in the case study above) as was application made by Matthew O’Connor for his supporters in his case above. Issues may be raised as to (1) whether the O’Connor case is binding on a family court, and (2) then the Boddington point arises: can the validity of r 27.10 be challenged in the Family Court? The criminal/family proceedings point may be raised there again by the court or by the other party (B) if he wants the case to remain secret.

 

A further argument, which C is entitled to raise for those who wish to come into court with her, is that the domestic abuse case, on exactly the same facts (if B is prosecuted) will be in open court (like all criminal proceedings); and B’s name will be published. In both jurisdictions the parties’ child will remain anonymous. This point was considered in an earlier post.

 

Application by A is as for any application in proceedings under FPR 2010 Pt 18 and (as an urgent interim application, under FPR 2010 Pt 20).

 

(2)        Non-parties who, out of professional interest, want to attend a case

 

(3)        A member of the general public who just wants to come into court

 

For these two categories of would-be court attenders the question is how they can apply to the court. Unquestionably they have the right to challenge whether or not r 27.10 applies to them and to any right they have to attend court. The court procedure for them to make any application is not clear as it is for the party to the case (C above).

 

Family court application by a non-party

 

The Boddington case (and see eg White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536, QB Div Ct (Gross LJ, Singh J) and Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 QB Div Ct (Hickinbottom LJ, Whipple J)) involve applications made by parties to proceedings, as does O’Connor. The procedure by which a non-party to proceedings applies for what amounts to a Boddington/O’Connor declaration – say before magistrates sitting in the Family Court – is not clear (the journalist who obtained her reporting order in R (A Child) [2019] EWCA Civ 482 was already entitled to be in court and able to make her own application there).

 

Armed with the arguments set out in the three parts of this series an applicant can try to persuade the court there is jurisdiction for that applicant to challenge the validity of the secrecy required by the rules in a domestic abuse case. Having established the Boddington/O’Connor jurisdiction to enable the challenge to be made, the second stage is for the applicant (or a party to proceedings already in court) to try to persuade a judge that r 27.10 is unlawful in an appropriate case where it excludes individuals which the common law permits to be in court; and which no substantive law – statute law or common law – has excluded (see the earlier Parts of this series).

 

David Burrows

9 September 2019

 

 

9 September 2019

Open justice and domestic abuse court hearings: now and under the bill

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A draft bill: domestic abuse hearings in 2019

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer) their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

Hybrid procedural court powers

 

The bill’s powers can be exercised across a range of types of proceedings, civil (ie including family) and criminal. As at present drawn cl 27 enables the court to make domestic abuse orders (as defined by the bill). Clause 27 includes the following:

 

27 Domestic abuse protection orders otherwise than on application

Family proceedings

(2) The High Court [ie the Family Division] or the family court may make a domestic abuse protection order against a person (“P”) in any family proceedings to which both P and the person for whose protection the order would be made are parties.

Criminal proceedings

(3) Where a person (“P”) has been convicted of an offence, the court dealing with P for that offence may (as well as sentencing P or dealing with P in any other way) make a domestic abuse protection order against P….

(5) A court by or before which a person is acquitted of an offence may make a domestic abuse protection order against the person.

(6) Where the Crown Court allows a person’s appeal against conviction, the Crown Court may make a domestic abuse protection order against the person.

Civil proceedings

(7) The county court may make a domestic abuse protection order against a person (“P”) in any relevant proceedings [as defined by the Secretary of State] to which both P and the person for whose protection the order would be made are parties.

 

Application of the open justice principle: criminal court and Family Law Act 1996

 

An immediate question which arises in relation to the bill is whether all proceedings which involve allegations of domestic abuse should be heard in open court, as they will be if based on a criminal charge; or will they, as in family proceedings, be heard in secret (see Clibbery v Allan (below))? The privacy of family courts hearings is defined by Family Procedure Rules 2010 (FPR 2010) rr 10.5 (for domestic violence proceedings) and 27.10 (for the vast majority of other family proceedings covered by FPR 2010. The term the rule-makers use is ‘private’

 

It will be assumed that this question arises – now – in parallel criminal and family proceedings on the same facts. The accused (AA) and the main witness for the prosecution in criminal proceedings are the same as the respondent and alleged victim (ie applicant) in the family proceedings. The facts are the same in each set of proceedings.

 

As the law now stands almost all family proceedings injunctions, for non-molestation and occupation (of the party’ and their children’s former home) orders are dealt with under Family Law Act 1996 (FLA 1996) Part 4. (FLA 1996 Part 4 cases count as proceedings under FPR 2010.) It is said by FPR 2010 r 27.10 that all such cases are to be heard in ‘private’.

 

By contrast criminal proceedings will be heard by magistrates or a jury in open court. The hearing in family proceedings – judging by the rules, is to be in secret (or ‘private’). That is said to be the law, now (see eg Transparency in the family courts by Doughty et al (2018)). At Transparency para 2.148 seems to accept without question what FPR 2010 rr 10.5 and 27.10 says, without any reflection on the powers (vires) of Family Procedure Rules Committee who made those rules.

 

The assumptions on which the Transparency book is based are unlikely to represent the law, despite what the rules say. Unless children are involved, there seems no logic in saying that in one court on the same facts a defendant should be tried in open court; but that in proceedings under family law rules any trial should be secret. Logic or not, the law also denies that domestic abuse proceedings should, as a default proposition, be heard in secret.

 

Open justice: a common law principle

 

What is to be heard in open court is defined by the common law, probably going back to medieval times, certainly to the period immediately after the Puritan Revolution. This is explained by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417. Secrecy – hearings in ‘chambers’ – was guaranteed then only for children proceedings, for hearings concerning ‘lunatics’ and where publicity of hearing might destroy the point of the trial (eg for patents). Scott was a family case; but one – nullity – where their Lordships seemed astonished that anyone could contemplate a hearing other than in public.

 

The common law can only be changed by a higher court decision, or by Act of Parliament. The open justice principle has been immune to date from statutory intervention.

 

However, things have moved on since Scott: national security and confidential information of a party has been added. The common law secrecy/privacy list is best summarised now by CPR 1998 r 39.2(3) which is as follows:

 

General rule – hearing to be in public

(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;

(f) [not relevant]; or

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

 

This list is reproduced almost word-for-word in relation to open court divorce etc hearings (FPR 2010 r 7.16(3); so the FPR 2010 rule-makers are well aware of CPR 1998 r 39.2(3).

 

A court rule cannot create law

 

The next legal principle has been described as ‘trite’ law – ie obvious (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75 referring to British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628). It is that a rule cannot create or change the law (unless Parliament says). This was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 as follows:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210 [per Lord Denning MR].

 

Rules exist only to regulate the law, save where Parliament says a rule can change a law. FPR 2010 are made under powers given to Family Procedure Rules Committee under Courts Act 2003 ss 75-76; and I can see no power to create law there (only in one case to ‘modify’ rules of evidence).

 

So what is the position in law of hearings under FLA 1996 Part 4? As it happens a frequently cited case – Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 – relates entirely to the 1996 Act. It was decided after introduction of CPR 1998 (which does not apply directly to family proceedings: CPR 1998 r 2.1(2)) but before FPRC made FPR 2010. The case defines the common law (ie judge-made law) for family proceedings of this type.

 

Clibbery v Allan: open court and domestic abuse in 2019

 

Dame Elizabeth Butler-Sloss P said of the terms in issue in Clibbery:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

Dame Elizabeth and Thorpe and Keene LJJ, held that FLA 1996 Part 4 hearings were to be held in ‘private’ (which they explained as open court, but with limited space for those attending court: see eg Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, CA); and that Ms Clibbery could not be prevented from handing over papers from the case to the press. That remains the law today; and it cannot be changed by FPRC and their FPR 2010.

 

What Dame Elizabeth held in Clibbery also explains by my use of the word ‘secret’ for private hearings. The rules say ‘private’. They mean, in terms of Clibbery ‘secret’; and that can only be changed by statute, or decision of a court higher than the Court of Appeal, namely the Supreme Court.

 

The bill is silent – so far – on the issue of open court injunction hearings (as far as I can see). Should it remain a matter for the common law, or should the authors of the bill be encouraged to be clear on the point? The open court principle is so much a creature of common law: I would leave it to the judges. And, till the bill is on the statute book, as I understand the law, FLA 1996 Pt 4 hearings should be in open court subject to any of the exceptions summarised by the list in CPR 1998 r 39.2(3).

A draft domestic abuse bill

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Domestic abuse and domestic violence in 2019

 

Domestic abuse is endemic in UK society. The law’s response, in general terms, has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (which is rarely used), uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order), and even prohibited steps orders in Children Act 1989 Part 2 proceedings. Each is governed by a different set of procedural rules. Different means of enforcement are employed according to the remedy and the order made by the court.

 

Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

 

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson [1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said: ‘I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnson remains important: it provides the continuing House of Lords definition of the stare decisis rule.)

 

A draft bill

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

 

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

This post will concentrate on the first and last of these and then look at what rights issues may be engaged.

 

Domestic abuse

 

At present the most extensive definition of ‘domestic abuse’ is in tucked away Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm. In LASPOA 2012 Sch 1 para 12(9) ‘domestic violence’ is defined as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

 

The bill sets out the modern, and more extensive than any before, definition of ‘domestic abuse’. Prominence for, and a definition of, ‘domestic abuse’ is welcome (as is a modernisation of Lord Scarman’s definition: in strict precedence terms Lord Scarman comes before a Practice Direction). Physical abuse and threatening behaviour are in the definition; and so – crucially, I suspect – is ‘controlling or coercive behaviour’. ‘Economic abuse’ and ‘emotional or other abuse’ (echoing Lord Scarman, perhaps) are important developments in statutory thinking.

 

I will not attempt, here, a thesis on the differences between each of the three definitions. The Lord Chancellor will need – surely? – to align the statutory LASPOA definition with the wider and more realistic definition in the bill. Once the bill reaches the statute book – if no General Election intervenes, as happened with the last more modest Tory Lord Chancellor bill in early 2017 – this comparative exercise will be needed to show how the law has moved on since 1976; and to define what the law means in 2019.

 

‘Protection for victims and witnesses is court’

 

Under the heading, ‘protection for victims’ etc Part 4 introduces a new Part 4B to Matrimonial and Family Proceedings Act 1984 (generally regarded as the statute which still is kicked about by amendment for many forms of family proceedings). But first: it is to be hoped that the bill will not reach the statute book with ‘victims’ still in the title (as above). They are ‘alleged victims’. Anecdotal evidence exists that parties to family proceedings (mostly women) are concocting their allegations to help them to obtain legal aid. The ‘alleged’ handle (‘complainant’ would be more neutral and economical of space) is perhaps more important than ever.

 

The scheme under Part 4 is derived from Youth Justice and Criminal Evidence Act 1999. Yes in criminal trials the protection for witnesses has a life of nearly 20 years. Part 4 proposes that where an alleged victim risks being abused all over again in court by being cross-examined by her alleged abuser, the court can appoint an advocate to cross-examine the alleged victim as ‘representative’ of the alleged abuser (proposed s 31V(5); and see YJCEA 1999 s 38(4)). The ‘representation’ point will need careful review: s 31V(7) goes on to say that the representative ‘is not responsible to the party’, as in YJCEA 1999; but what does that mean if the advocate is the alleged abuser’s ‘representative’?

 

And yes, for any lawyer reading this post: there is provision for payment for lawyers for doing the cross-examination job, set out in proposed s 31W; but the detail of what is paid and how by the Lord Chancellor will be needed.

Domestic abuse in the family courts: how can proceedings be made more civilised? (2)

20160419_173301Domestic abuse: making proceedings less frightening

 

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in private (ie in secret). The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court (as explained in an earlier post here).

 

Yes, but if domestic abuse proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly in court – the abuse she complains of? This post explains that some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other such procedures are available in criminal proceedings, but are still not available to the Family Court to help domestic abuse complainants.

 

This post will assume that the complainant partner or spouse is (as is mostly the case) the mother. The father has been responsible for domestic abuse (violence, controlling behaviour and so on). The question of whether a hearing should be in open court was considered by me here; and what is meant by ‘domestic abuse’ as the law now stands was considered here).

 

In the first post I explained why I thought that in law domestic abuse proceedings should be in open court; just as a prosecution for a criminal offence arising from the same facts would be publicly dealt with. To help complainants there are a range of family courts procedural features which must also be considered (and which are I hope, being considered by Home Office reformers as I write):

 

  • 1 In all Family Court hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 2 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

Other fair ways to provide evidence

 

The conventional way for any case to be dealt with is for parties to proceedings and any witnesses to put their evidence in writing (a statement) to the court. That is their evidence in support of their case (evidence in chief). In practice judges like to hear a bit more from the parties and their witnesses. In some cases parties – parents, say, in a dispute about where a child should live – may be asked to say more about the background to the case and their feelings about their children and where they should live.

 

Giving evidence must be bad enough in any proceedings; but where you are being told that it is for you to convince the court that your individual claims are true (where your former partner disputes what you are saying) it must cause even more anxiety. And then for that evidence to be required to be given in front of the person who you say has abused you.

 

There are ways a person can give that evidence in chief by using evidence they have recorded with the police (called ABE (‘achieving best evidence’) evidence). ABE evidence is mostly obtained during initial police investigations. This is used routinely for a child’s evidence in care proceedings. In criminal proceedings it can also be used for evidence from adults. There is no reason in principle why it should not be used as evidence obtained from adults in family proceedings; but I suspect it rarely, if ever, is. And, by extension, there is no reason why adult ABE evidence cannot be used where solicitors – very carefully, and without leading questions – have recorded their client’s evidence. Is this ever done?

 

Next, evidence can be given in court by video-link where the complainant is in a different room from her former partner; but many courts do not have the equipment. How many lawyers challenge HMCTS to equip themselves properly so evidence can be given in this way? Evidence can be given from behind a screen so the complainant need not see her former partner.

 

All of these are there in the law – not just the rules – for parties to use. Might they help a frightened complainant to give evidence?

 

An advocate to ask questions for an allegedly abusive partner

 

A next procedural problem may arise. Suppose the former partner is unrepresented. He has no lawyer as many will not have. He will not be eligible for legal aid.

 

He is entitled to cross-examine the complainant and challenge her as to the truthfulness of what she has said to the court. That is truly to make her relive the abuse: a High Court judge has recently commented of a case ‘It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross examined by an alleged perpetrator.’ That judge had to sit through a hearing – children proceedings, not domestic abuse – and hear the woman being shredded by her former partner. To deny it would be to deny the partner a right to cross-examine which would be to deny a fundamental legal right.

 

It will not surprise readers of this post to find that criminal cases are well ahead – 20 years ahead – of family proceedings. In criminal court there is a scheme, which was copied for family proceedings in Prison and Courts Bill cl 47. Clause 47 was lost with the 2017 election and is under review in the Home Office – we are told – now.

 

The criminal scheme makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. Thus, in criminal proceedings, an accused cannot then, by law, cross-examine the complainant. The court must then ‘invite’ the accused to instruct an advocate. If he refuses – he cannot, or will not pay, for example – the court must consider whether it is necessary for the witness ‘to be cross-examined by a legal representative appointed to represent the interests of the accused’. If that happens the court must then consider appointing an advocate to ask questions of the complainant (or accuser/witness in criminal proceedings).

 

None of this is going to make it any easier for a complainant to appear in court; but, whether or not proceedings are in open court, the procedural points considered in this post might at least make it a little less unpleasant for her than it must be in most cases now.

 

Why does the Family Court hear domestic abuse cases in private? (1)

20170722_161644Domestic abuse and children

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in secret. The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court. But, it is said, if proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly – the abuse she complains of? Some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other procedures are available in criminal proceedings, but are still not available to the Family Court. This and a second post examine these issues.

In her Guardian article, ‘Why do we separate the mother and child victims of domestic abuse’ (20 November 2018) Louise Tickle drew attention to the dire circumstances of mothers who lost their children because of domestic violence. This might be to the care of a local authority. A judge in care cases (she suggests it is quite frequent) ‘is told that the mother has “failed to prioritise her children’s needs over her own”. Social services know perfectly well that the abuse isn’t the victim’s fault – but, they tell the court, she’s the only protective factor in her kids’ lives. And she’s failing at it.’

 

This post will assume that the complainant partner or spouse is (as is mostly the case) a mother. The social services department, if involved, assumes that the children will remain with her. The father has been responsible for domestic abuse (violence, controlling behaviour and so on: a subject considered by me eg here and here (in relation to ‘open court hearings’)).

 

The treatment of a complainant parent in the way described by Louise Tickle way is, as the Guardian says, ‘grotesque’. And it is grotesque on a number of levels. This and a following post look will look at three features of the way domestic abuse cases are dealt with by the family courts, namely:

 

  • 1 Claims by mothers are being dealt with in private (or secret). This is probably unlawful. Criminal proceedings on the same domestic abuse facts are dealt with in open court; so that the ‘grotesque’ features described by Louise Tickle go unchecked.
  • 2 In all family courts hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 3 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

The first question, which this post seeks to address, is that of private family courts. (Meanwhile domestic abuse proceedings are the subject of Home Office consultation (previously discussed by me here).) The procedural matters which arise from the second two questions will be dealt with in a separate post.

 

At present the abused parent – in the procedure discussed by Louise Tickle – applies to the Family Court for a non-molestation order. If the complainant proves she has been ‘molested’ (ie made the subject of domestic abuse) she will have an injunctions (a court order which tells her former partner not to ‘molest’ her); and her former partner may also be excluded from their home (if he is still there). If he breaches the orders – ie is responsible for further abusive behaviour, which is proved – he may be sent to prison (though this is often not until after a number of successive complaints to the Family Court have been made by a wife/mother).

 

Meanwhile, says Louise Tickle, ‘children are being taken into care in unprecedented numbers, and losing their human right to live with their birth families because women are being blamed, rather than helped. Removing children from mothers suffering domestic abuse prioritises short-term safety over the much bigger win that would help keep a family physically and psychologically intact in the longer term.’

 

Open court or private hearings

 

So should cases be heard in open court? And if not, why not?

 

Domestic abuse proceedings are ‘family proceedings’ (ie they deal with issues which need to be resolved for a broken family). Family proceedings are dealt with in private (ie no one but the parties and court staff etc) can go into court. This privacy is required by the court rules. For good measure the rules say, in the part which deals with domestic abuse, ‘applications for an occupation order or non-molestation order will be in private’. But is this the law?

 

It is an old rule – what lawyers call ‘trite’ law – that a court rule cannot override the law. A court rule is not law. It can only dictate how the procedure which defines the law is to operate. Thus, the common law says that all court hearings shall be in open court, with certain long-standing exceptions (listed later).

 

In 1913 in a family law nullity case, where a husband had said he did not want everyone to know he was incapable of sex with his wife, the House of Lords said to him, ‘tough’; only a limited band of cases (and his was not one) could be heard privately (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). In 1913 this limited band was as Lord Shaw said (echoing the words of other law lords), confined to three categories of case which are (adopting the terminology of the time): ‘The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention — trade secrets — is of the essence of the cause.’

 

To this list the common law in 2018 has added

 

  • Matters relating to national security
  • Proceedings concerning confidential information, where publicity would damage that confidentiality
  • An interim hearing where publicity would be unjust (eg the recent Philip Green Court of Appeal hearing and Peter Hain)

 

None of this list of six categories of case – which still represent the law over 100 years later – includes domestic abuse, whether in the Family Court or in any other court. But can the rule makers (who are entirely undemocratic) change the common law. No, they are not. Subsequent Supreme Court authority has confirmed that. Only another decision of the Supreme Court or a statute can change what is in the common law.

 

Why hearings in open court?

 

The reason for open court hearings has been explained by judges frequently. Recently in a case where the Guardian sought documents from a magistrates’ court extradition hearing (which the Court of Appeal agreed the Guardian should have) Lord Justice Toulson said of ‘open justice’: ‘The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.’

 

The judge continued: ‘Jeremy Bentham explained this: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”’

 

And surely this statement from Jeremy Bentham is why, in principle and subject to protection for the complainants (to be discussed in the second post), that domestic abuse hearings should be in open court? They would be dealt with in open court before a jury on the same domestic abuse facts. Provided that the welfare and anonymity of any children involved is protected – as it is in the Crown Court – then the law (ie as distinct from the rules) is, I believe, that these proceedings should be in open court.

 

If judges and local authorities are behaving as Louise Tickle says they are; or if violent men are being dealt with leniently; and all this is being covered up or glossed over because of the secrecy of Family Court proceedings, then the way in which these cases are dealt with in the family courts should, surely, be seriously questioned. The first thing is to ask: does the law say these cases can be dealt with in private; and if not to open up domestic abuse courts to Benthamite publicity. This is what I believe the common law requires.

Legal aid and Convention rights in domestic violence committal proceedings

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Non-molestation orders and conviction for breach

 

Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson [1978] UKHL 1, [1979] AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article

 

FLA 1996 s 42, as relevant, reads

 

42 Non-molestation orders

(1)   In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions –

(a)provision prohibiting a person (‘the respondent’ [(B)]) from molesting another person [(A)] who is associated with the respondent;

(b)provision prohibiting [B] from molesting a relevant child [(C)].

(2) The court may make a non-molestation order –

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by [A] with [B]; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or [C] even though no such application has been made.

 

Offence for breach of non-molestation order

 

Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:

 

42A Offence of breaching non-molestation order

(1)   A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….

(5) A person guilty of an offence under this section is liable –

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….

 

Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).

 

Conviction on a substratum of findings to a civil standard of proof

 

Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid.  B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.

 

If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest [2015] EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal) [2016] 1 FLR 773.

 

McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura [2013] EWHC 3633 (Fam), [2013] 2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan [2013] EWCA Civ 586, [2014] 1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:

 

[55]   The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.

 

The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:

 

[55] … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

(c)the burden of proof is at all times on the applicant; and

(d)the respondent cannot be compelled to give evidence.

 

 

The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak [2001] 1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:

 

[29] … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.

 

The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:

 

3 Everyone charged with a criminal offence has the following minimum rights –

(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…

(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;…

 

Engels v Netherlands: ‘legal assistance of his choosing’

 

Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:

 

[85] The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a “determination” of “civil rights”

[87] Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).

 

As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.

 

Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3

 

The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?

 

This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:

 

[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.

 

And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?

 

If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.

 

Legal aid and the non-molestation order

 

The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.

 

But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.

 

 I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.