Sir Henry Brooke and human rights

20160419_170156Mubarak and the right to a fair trial

 

A great lawyer and a man concerned for rights, and that they be protected by legal aid, died yesterday. I am not qualified to comment on his life or his many achievements. However my professional career has been influenced by two cases which go to his concern for the rights of individuals in legal proceeding, and to the importance of European Convention 1950 rights.

 

In my many years of defending individuals (almost invariably men) who were taken to the magistrates’ court by Child Support Agency (Child Support Act 1991 s 40A) and their imprisonment sought for alleged arrears (which the Agency were not required to prove) I came to rely on the judgements of the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698 (Judgment: 14 December 2000). In that case Sir Henry, then Brooke LJ sat with Thorpe LJ and Jacob J and started his judgment – ‘a few words of my own’ – with:

 

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

 

Mr Mubarak was no angel. However, the case shows that entitlement to rights – ‘human rights’ – does not discriminate: rich or poor; male or female; or on grounds of gender or transgender; or religion or race. Mr Mubarak was an international jeweller who was ordered, following a hearing where he had submitted fraudulent evidence, to pay his former wife just under £5M. On his failure to pay the first £3M the wife issued a judgment summons under the then rules and in accordance with Debtors Act 1869 s 5. The wife stated simply that the husband had not paid the money which he had been ordered to pay. In a judgment which also considered the court’s inability to enforce the lump sum order against the husband’s companies, the judge made an order on the judgment summons, committing the husband to prison for 6 weeks, not to be put into force if the husband paid.

 

On the husband’s appeal and on his argument that the judgment summons procedure was not Human Rights Act 1998 compliant, the Court of Appeal agreed with him. The effect of the procedure was to require an alleged contemnor to provide evidence for his accuser; that is to self-incriminate.

 

Debtors Act 1869 s 5 in the twentieth century

 

Debtors Act 1869 s 5 provides a still-surviving Victorian procedure which, even 25 years ago, was described by Waite J (in R v Luton Magistrates’ Courts ex parte Sullivan [1992] 2 FLR 196) as

 

The power under s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.

 

Sir Henry’s was a classic of modern Human Rights Act 1998 informed procedural analysis. A person must know the case against them, and cannot be required to make their opponents case for them. He started with the case which lead to CPR 1998 rules being amended, Newman v Modern Bookbinders Ltd [2000] 1 WLR 2559 where Sedley LJ set out principles of general application to all cases of civil contempt which were going to be caught by European Convention 1950 Art 6:

 

[46]… Although the facts of that case are very far removed from the present, Sedley LJ spelt out the requirement for clarity of procedure and also the requirement that a person who faces what is now to be regarded as a criminal charge under Art 6 of the Convention should understand in detail the true nature and cause of the accusation against him. In para 26 of his judgment, Sedley LJ pointed out that this was one of the rights known longest to the law of England, ‘since, at least, the moment 350 years ago when John Lilburne demanded and finally obtained the sight of the indictment on which he was to be tried’.

 

An application to commit amount to a criminal charge and therefore Art 6.3 applies. Debtors Act 1869 s 5, he says, puts the onus correctly on the debtor to prove a case, which may then be followed by a means enquiry:

 

[56] What follows in s 5 is a procedure for a means inquiry. It reads: ‘Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.’

 

Privilege against self-incrimination and European Convention 1950

 

This both Brooke and Thorpe LJJ emphasised obliged ‘[57] …. the person who is facing what is now to be regarded as a criminal charge is to be cross-examined on oath as part of the same proceedings as part of the process of gathering evidence for the charge against him. That procedure cannot remain in place under European Convention 1950: nobody is obliged to incriminate themselves.’

 

And Sir Henry went on to explain how the then procedure in family proceedings (now modernised under FPR 2010 Pt 33) put ‘the burden of proof upside down’; and he concluded with a reminder then – in late 2000 – of the importance of the Convention:

 

[62] I have mentioned the requirements of the Convention. So far as they are relevant for current purposes, Art 6(1) requires ‘a fair and public hearing’. Article 6(2) requires that ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’… Article 6(3) provides that:

‘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 [the John Lilburne point];…

(d)to examine or have examined witnesses against him …’

[63]   Both these requirements seem to have been completely overlooked

by Mrs Mubarak’s former advisors when preparing their case in these proceedings.

 

Proceeds of Crime Act 2002 Part 7

 

Sir Henry gave the judgment of the court (himself, and Mance and Dyson LJJ) in Bowman v Fels [2005] EWCA Civ 226, [2005] 2 FLR 247. That case was of personal interest to me. Many family lawyers – including Dame Elizabeth Butler-Sloss P and Mostyn QC – believed the Proceeds of Crime Act 2002 Pt 7 meant lawyers must breach their clients’ privilege and pass confidential information to Government agents. I did not believe the Act meant this; but I was in a minority of one on the SFLA (Resolution) committee. I had no choice but to resign from the committee in January 2004. Bowman v Fels showed that I had been right, though y then it was much too late to go back to my job.


[86] There is nothing in the language of s 328 [the section which was said to cause privilege to be overridden] to suggest that Parliament expressly intended to override legal professional privilege. In his speech in R (Morgan Grenfell & Co Ltd) v Special Commissioner for Income Tax [2002] UKHL 21, [2003] 1 AC 563 Lord Hobhouse said at paras [45]–[46]:

‘[45] It is accepted that the statute does not contain any express words that abrogate the taxpayer’s common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect…. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

‘[46] In the present case the statutory language falls a long way short of meeting this criterion.’

[87]…Much stronger language would have been required if s 328 could be interpreted as bearing a necessary implication that legal professional privilege was to be overridden. As Lord Hoffmann said in R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115 (see para [81] above): ‘Fundamental rights cannot be overridden by general … words.’ For these reasons, even if s 328 does apply to the ordinary conduct of legal proceedings, it does not override legal professional privilege.

 

And there the subject has rested…

Advertisements

EU Charter of rights and children

A child’s Charter rights which will be lost

 

The Observer today reported that clause 5(4) in the European Union (Withdrawal) Bill which proposes to abolish Charter of Fundamental Rights of the European Union (‘the Charter’) will create a substantial ‘human rights deficit’. It will leave ‘many different groups in society without adequate protection’. Clause 5(4) is in brutally clear terms: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. This article concentrates on children’s rights under the Charter which will go on exit day.

 

An important means of protecting rights – apart from those rights already enshrined in a variety of other legislation and in the common law – is European Convention 1950. This is incorporated, most of it, into English law by Human Rights Act 1998. However there are two substantial qualifications to the importance of European Convention 1950, which the Charter helps to resolve. First, Human Rights Act 1998 does not override an Act of Parliament; though it can enable judges to declare them incompatible with the European Convention 1950. Secondly, the Charter’s protection means that if there is a conflict between basic rights contained in the Charter as against an Act of the Westminster parliament, the Charter – as EU law – will prevail over the Act.

 

Thus if there is – as there may be – a conflict between Children Act 1989 s 1(3) and Art 24 of the Charter for children rights, then the Charter will prevail; unless clause 5(4) becomes law when, after exit day – when UK leaves the EU – the Charter exits too.

 

Children law an EU withdrawal: out with the Brexit bathwater…

 

An area of law which will be appreciably affected in a number of ways by EU withdrawal is children law, in particular where they and one of their parents are living in UK, and the other is in a EU member state. That is a subject which is beyond the scope of this article. I want to concentrate here only on the Charter; and referring only to law which does not remain part of English law. Art 24 of the Charter is concerned specifically with children’s rights (as is, though in slightly different terms, United Nations Convention on the Rights of the Child 1989 Art 12).

 

Under European Convention 1950 children do not have specific rights. Like anyone else a child has rights under the Convention, such as to respect for the child’s private life (Art 8); but a child does not have the specific rights protected by Art 24.

 

Charter of Fundamental Rights of the European Union Art 24 says:

 

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

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

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

 

EU Charter Art 24: children to express views freely

 

I have broken this Article down into its component rights and have set out the Charter rights – ie part of English law as it now stands; and nothing to do with European Convention 1950 human rights. Alongside the Art 24 rights I have shown the parallel English law right – ie all that will remain if the EU Charter is abolished by the Brexit law (as under cl 5(4)). Where there is a blank there is no equivalent provision in English law; though plainly the right at 1 is the subject of a substantial part of a variety of legislation, including local authority involvement with children under Children Act 1989 Parts 3 to 5. It is the right to express views (at 2) which is unique to the Charter:

 

  Charter of Fundamental Rights of the European Union Art 24: children’s rights English law Source of English law
1 Children have a right to such protection and care as is necessary for their well-being    
2 Children may express their views freely    
3 Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. When a court is making an order about a child, it shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) Children Act 1989 s 1(3)(a) and (4)
4 In all children cases… the child’s best interests must be a primary consideration. When a court determines any question with respect to – (a) the upbringing of a child; or the child’s welfare shall be the court’s paramount consideration. Children Act 1989 s 1(1)
5 Every child shall have the right to maintain a personal relationship and direct contact with both his or her parents, unless that is contrary to the child’s interests A court is entitled to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. Children Act 1989 s 1(2A)[1]

 

Child’s views, according to age and maturity

 

The passages in Art 24 with which I am concerned here are at 2 and 3; since 2 is not re-produced in English law in terms which are, in effect, mandatory as is the case in Art 24. If a child wants to express a view, the child ‘may’ do so; and means must be found to ensure this. Even now that is not done properly in English children proceedings. The provision at 2 in the table does not exist in English law, save – whilst the Charter remains part of English law – in Art 24.

 

The importance of Art 24 has been asserted by the Court of Appeal in a judgment approved by the Supreme Court in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 where Lord Justice Ryder explained why a seven-year old Bulgarian child should have had ‘an opportunity to be heard’. This does not mean the child necessarily has to appear in court; but the ‘opportunity’ must be there which it had not been in the Bulgarian courts.

 

The terminology ‘opportunity to be heard’ derives from EU legislation – Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility – to give it its full title; generally known as ‘Brussels IIA’, or Brussels IIR. That legislation will also go with EU withdrawal, a fact which was noted (at para [71]) by the Supreme Court in the Gina Miller case (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583).

 

The alignment of Brussels IIA and the Charter will be considered in another article. For now it is sufficient to say that Brussels IIA as part of its preliminary provisions includes:

 

(33) [Brussels IIA] recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union,

 

Views: an opportunity to be heard

 

So, said Ryder LJ, in Re D (above) that the child’s right to an opportunity to be heard is a ‘child-centred issue’. It ensures that the child is engaged in the process and is accorded due respect in that process. It is thus part of the rule of law in England and Wales that a child has the right to participate in the process about the child (emphasis added) he said, and then continued:

 

[44]  … That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation (my italics).

 

To me this issue turns on the two forms of legislation at 3 above. Childrens’ views shall be taken into consideration on matters which concern them in accordance with their age and maturity, is the EU Charter version. English law says that when making  a decision about a child’s future the court ‘shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.

 

To me – and I am trying very hard not to load my pro-European views onto this – the English version of the law, from a child’s point of view, is appreciably weaker under Children Act 1989 s 1(3)(a). A child’s ‘wishes and feelings’ are but one of six factors to be considered by the court. None of the six are to be given priority. In EU law the child has a right – unconditionally – to have his or her views taken into account (if that is what the child wants).

 

Under the EU withdrawal bill those child’s rights will go. Children Act 1989 s 1(3)(a) will be all that is left to protect such rights as children are accorded by family courts.

[1] Added by amendment by Children and Families Act 2014 from April 2014

Privacy, the common law and a celebrity divorce

Court divorce papers: how private?

 

Under the headline ‘Jamie and Louise Redknapp’s divorce papers to be kept secret as a judge blocks the release of documents’ the Transparency Project reported last week-end that a London court had ‘blocked the release of papers that would normally be made public and he has not given a reason why’. The Daily Mail, TP said, had complained: ‘A judge has thrown a blanket of secrecy over the’ couple’s divorce. TP replied resolutely:

 

‘What rubbish. A judge has probably refused to allow the press access to something that they weren’t entitled to in the first place and that they knew and the judge knew and we all know probably contains nothing of… public interest. What do the Family Court rules (FPR) allow the press to see? The short answer can be found in rule 29.12 which basically says – if you aren’t involved in the case you can have nada, unless the judge agrees.’

 

I do not believe the answer is as simple as that. The question of release of these documents involves a legal whirlpool fed by at least three conflicting cross-currents:

 

  • The open justice principle
  • That court rules cannot change existing law or create new law
  • The meaning of ‘privacy’ in 2018

 

Privacy, in the case of a ‘celebrity’ – as Mr and Mrs Redknapp are described – creates its own subsidiary question: to what extent is ‘privacy’ consistent with the symbiotic relationship between press and people like the Redknapps?

 

Open justice principle

 

The common law applies to all aspects of English law, save where it is changed by statute. In R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 the Court of Appeal considered whether a newspaper could have released to it papers considered by a magistrate’s court district judge in relation to extradition proceedings. The judge said she could not release papers; and the Divisional Court agreed with her.

 

Toulson LJ gave the main judgment in the Court of Appeal which he started as follows:

 

[1] 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. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘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.’

 

Toulson LJ continued

 

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

And in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (a case about anonymity and terrorism) Lord Roger commented:

 

[63] What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.

 

Press freedom and privacy call for a balance to be struck.

 

Human rights

 

To affirm all this, not only does the common law open justice principle ‘let in the light and allows the public to scrutinise the workings of the law, for better or for worse’ (see Toulson LJ above); but it is demanded by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 6.1. This requires all court hearings to be in public; but with certain limits. These limits are summarised in the latter part of Art 6.1 as:

 

1 … 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.

 

In English common law the position is best summarised by CPR 1998 r 39.2(3); and for this article it is suggested that these limitations operate for all court proceedings (criminal, civil or family). If a case comes within this list application can be made to claim privacy for any hearing, even though it might otherwise have been heard 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; … or

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

 

Privacy is bolstered by European Convention 1950 Art 8, that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

 

However, the right – countervailing that of privacy – is for all of us, that of ‘freedom of expression’ (Art 10). This protects private individuals, press and social media alike. Thus, ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…’.

 

None of these takes priority one over the other (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591); but it is clear that the courts will generally strongly influenced by the Convention emphasis on freedom of expression (Human Rights Act 1998 s 12(4)).

 

Rules cannot change the law

 

The second cross-current is that a court rule cannot change the law. Family proceedings are governed by Family Procedure Rules 2010 which are written by a group of civil servants and practising lawyers (given powers to do so by Courts Act 2003 ss 75-76). They are not considered by MPs but are dealt with by the negative resolution procedure (Courts Act 2003 s 79).

 

The aim of the rules is to define how courts should apply the law (procedure). Whether or not documents (eg a divorce petition) should be released to a non-party is an example. If a rule says something different from the common law, the rule is wrong; and there is certainly nothing in those rules ‘expressly permitting’ that the rule makers can alter common law principles.

 

That this is not possible, constitutionally, is confirmed by for example Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale in the Supreme Court said:

 

[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.

 

Generally proceedings under FPR 2010 are heard in private (FPR 2010 r 27.10); unless the rules say something else. Proceedings under FPR 2010 Pt 7 (mostly for divorce) are to be heard in open court (r 7.16(1)), save in the circumstances listed in r 7.16(3) (which provides a list similar to CPR 1998 r 39.2(3)) which sets out when court hearings, otherwise open, may be in private.

 

This is openness subject to the condition that only certain information may be publicised by the printed press (publisher or printer) Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b). But what is meant here by a ‘hearing’ and, subject to that, what documents can be released to those who attend court?

 

A side comment on this is provided by r 29.12(2). If there has been a hearing in open court anyone can ask for a copy of the order made. In the case of divorce proceedings this is unremarkable. A divorce order is in rem: it speaks to the world. This tells us nothing about whether, for example, a journalist can obtain a couple’s divorce petition and if so, to what extent his or her newspaper can publish anything.

 

If the journalist can obtain documents – as could the Guardian in the Westminster Magistrates’ case – is it consistent with the right to respect for a couple’s private life that they should be allowed to publish (European Convention 1950 Art 8.1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457)? If no, does it make any difference that one or both of the couple concerned are ‘celebrities’ (ie spend much of their life developing a symbiotic relations ship with the press, as in Naomi Campbell’s case)? Probably not; but this is part of a much wider subject, and must be the subject of a separate later article. In the meantime, what can be released to non-parties: that is to anyone who is not a party to the proceedings?

 

Divorce papers and release of hearing documents

 

What court documents – such as divorce papers which set out why one party says he or she should not have to live with the other – should be permitted for release? The law is unclear on this (as explained in my ‘Release of family courts hearing documents’).

 

Here an odd statutory side-wind blows in. Even if a journalist sits in court for a divorce (and very few divorces are ever heard in open court, since only defended divorces involve a full hearing) he or she still cannot publish any but the most basic information about the proceedings. A little known statute – Judicial Proceedings (Regulation of Reports) Act 1926 (considered more fully here) – at s 1(1)(b) says that a newspaper or printer who publishes anything about a divorce except basic information (such as names, addresses etc of the parties and details of legal argument and judgement), may be prosecuted (if the Attorney-General agrees). This was at a time when radio (‘wireless’ as it was then) journalism was little known; and television and social media not dreamed of. Only print media are caught by s 1(1)(b). It does not catch the rest of us nor other media.

 

What we know so far is that court orders can be released and that court hearings are in open court. The law is that a non-party – such as the Mail – must apply for documents. This was established by the Guardian v Westminster case; and backed up by NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J. If application is made, the Mail must explain why it wants the documents. As Toulson LJ (with whom Lord Neuberger LJ and Hooper LJ agreed):

 

[85] In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

 

It may be worth adding that as Hooper LJ pointed out (at [95]), the position on disclosure in criminal proceedings (then Criminal Procedure Rules 2011 r 5.8(7) now 2015 r 5.7(5)) is:

 

If the court so directs, the court officer will— (a) supply to the applicant, by word of mouth, other information about the case; or (b) allow the applicant to inspect or copy a document, or part of a document, containing information about the case.

 

This is supplemented, as Hooper LJ points out, by a note that the supply of information may be affected by European Convention 1950 Arts 6, 8 and 10 ‘and the court’s duty to have regard to the importance of— (i) dealing with criminal cases in public, and (ii) allowing a public hearing to be reported to the public’. It will be recalled that, as ever, it is the same common law which regulate criminal and family proceedings.

 

If the Mail gets them, they cannot print more than names, addresses and the judgment. So far as rules say anything else – eg that non-parties cannot even apply for documents or information (which some judges think is what the law says) – the rules are unlawful. Guardian v Westminster makes it clear that the court must consider any application and deal with it on its merits and according to the individual facts of the case. In the case of the Redknapps the district judge had to make deal with the application and give reasons for his decision (FPR 2010 r 27.2(3)).

 

Privacy and the ‘celebrity’ divorce

 

The basis for that district judge decision brings in the final cross-current: privacy. This is a relatively new principle of English law, derived partly from our common law rules about confidentiality and partly from European Convention 1950 law. It was most famously considered in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 when Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; and the House held (3:2) that her privacy had been breached. Secretly the Mirror had arranged for photos to be taken of her. These were published them with further stories about her drug habit (which up till then she had publicly denied). She was awarded £3,500 damages.

 

The House asked: what privacy was she entitled to expect, even as a very public person (‘celebrity’) and although the Mirror were putting the record straight on her drug habit. Despite these two points, there was an extent to which she could expect privacy said the two lords and a lady. If I were asked I would say the Redknapps were entitled to privacy with their divorce papers; and that the district judge could say so.

Rights and an English divorce

Mrs Owens and the Supreme Court

 

Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of a circuit judge and the Court of Appeal (Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74) to find that, though her marriage had unquestionably broken down, she failed to prove that her husband had behaved in a way which showed that she could not reasonably be expected to live with him.

 

The relevant law is set out at Matrimonial Causes Act 1973 s 1. There is one ground for divorce: either party to a marriage can petition for divorce (A) ‘on the ground that the marriage has broken down irretrievably’; but a court can only say there is irretrievable breakdown if one of five ‘facts’ are proved including (s 1(2)(b)): ‘that the respondent [(B)] has behaved in such a way that [A] cannot reasonably be expected to live with [(B)]’.

 

Though they considered that Mrs Owens’s (ie A’s in her case) marriage had broken down irretrievably, the Court of Appeal felt unable to say that she could not be expected to live with Mr Owens (see eg comment at ‘Owens: a dead marriage but no divorce’ [2017] New Law Journal 31 March, David Burrows; and here). The logic of the court’s conclusion, based only on the words of s 1, is difficult to follow. But what of its logic, in terms of Mrs Owens’s personal – or ‘human’ – rights (under European Convention 1950 and generally)?

 

European Convention 1950 and Mrs Owens’s rights

 

In Owens Sir James Munby P commented on Mrs Owens’s advocate’s assertion that European Convention 1950 Arts 8 and 12 supported her case. He said, of Mr Owens’s reply to this assertion, with which he agreed, that there is ‘no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings’.

 

Art 12 declares that those of ‘marriageable age have the right to marry’; and nothing is said of divorce. Art 8 deals with respect for a person’s ‘private and family life [and] his or her home’. Sir James described Mrs Owens’s advocate’s argument under Art 8 as:

 

[54] … He invites us to consider what level of ‘fault’ must be established to obtain a divorce and whether dispositive, or at least greater, weight should be given to the petitioner’s wishes and feelings. More profoundly, he invites us to consider whether the requirement to prove ‘fault’ is consistent with Articles 8 and 12

 

If this was the advocates’ argument it was, indeed, an odd line for him to take. Section 1(2)(b) does not require anyone to prove ‘fault’. It asks an open question: has a spouse behaved in such a way that the other spouse cannot live with her or him? That need not be because they are at fault. It requires proof only that B has acted in a way that A ‘cannot reasonably be expected to live with’ B. A must be able to say that her marriage is dead (as in the Owens case, and as the court found). Each party surely should then be able to move on?

 

Respect for ‘private and family life’: rights to privacy

 

If European Convention 1950 is necessary to all this, Art 8 seems to me to be relevant. I cannot see that Art 12 has any relevance. It is difficult to see how respect for a person’s ‘private life’ (‘private and family’ are disjunctive: they mean two different things. They are not both part of the same concept) is consistent with requiring either party to a dead marriage to going on living with the other spouse (as the court knew was likely to be the effect of their decision for Mrs Owens).

 

Looked at as a question of right separate from European Convention 1950, it is necessary to find a duty to which the right is corollary (or reflective). Do I have a duty to live with someone I no longer want to share a home with? If there is no marriage the answer is resoundingly: no. If I am married to that person, why is my duty any different? If it is different, does not the right not to be discriminated against (Art 14) apply (marriage is an ‘other status’ as referred to in Art 14).

 

In law spouses must make arrangements for financial support for one another (or the court can order it: Matrimonial Causes Act 1973 Pt 2). That is a statutory duty bred of a right to financial support from the weaker spouse (the same does not apply if we are not married). That right would be protected – enhanced even – if Mrs Owens’s marriage is dissolved.

 

But to find – as did the Court of Appeal – a right vested in Mr Owens to expect of Mrs Owens a form of conjugal cohabitation (and thus no right in Mrs Owens to claim financial support till her marriage is dissolved) is not in any statute. Is such a right implied by English law? That it is, is the logic of the Court of Appeal’s decision.

 

Does the requirement to live in an unwanted and loveless relationship interfere with a person’s ‘family life [and] home’? Common sense – and, it must be hoped, the law – must surely say ‘yes’? If MCA 1973 s 1(2)(b) says what the Court of Appeal says it says – and I do not think it does require them to find as they did in Owens – then Mrs Owens needs also to seek a declaration of incompatibility with her rights (in Arts 8 and 14) under Human Rights Act 1998 s 4.

Rights: privacy, anonymity and freedom of expression on family cases

‘Open justice’ in family proceedings

 

As a High Court judge (Mostyn J) has commented (in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) rights to open justice in family proceedings are a mess; though – sad to say, and as will be seen below (the Carmarthenshire case) – he has done his own bit to stir the muddled pot.

 

Family lawyers are debating whether financial relief hearings (an important part of the family courts’ work) should be in open court or in private (as FPR 2010 r 27.10 – though without any statutory or common law underlay) says they must be. Different Family Division judges take different views (and Mostyn J is one of the noisier ones on the subject).

 

Three cases in the last month remind lawyers generally of the variety of application of open justice principles:

 

  • The predominant issue is whether a case should be heard in public as common law has long required (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and see eg ‘To be heard in the dining hall…’: Scott 100 years on). Subsidiary to this are, for exampe:
  • Anonymity for a party to proceedings; or to a witness or others (eg expert witnesses, social workers etc) involved in the case (eg Khuja below);
  • Release of court and other hearing documents (a consequence of the Carmathen case below);
  • Publicity for a private (eg children) case (and the balance to be struck between privacy (European Convention 1950 Art 8) and freedom of expression (Art 10) (eg Southend case below).

 

Khuja : ‘what’s in a name?

 

Khuja v Times Newspapers Ltd [2017] UKSC 49 relates to the open justice principle and a person’s involvement – though not charged – in criminal proceedings. Charges arose from facts which are directly of concern to family lawyers, namely child sexual abuse (see eg Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam), [2015] 2 FLR 763 Keehan J). As Lord Sumption said (giving judgement for the 5:2 justice majority):

 

[1] For some years The Times and other media organisations have taken a close interest in investigating and reporting on allegations that the police and child protection authorities have failed adequately to confront a pattern of crime involving the sexual exploitation of vulnerable young teenage girls by older men. It need hardly be said that this is a subject of serious public concern. It has given rise to a number of government-ordered national inquiries, a review of standards of protection in children’s homes, and substantial changes in the procedures of the police and prosecuting authorities for handling such cases.

 

Nine men were tried on charges involving organised child sex in the Oxford area. Seven men were convicted. Khuja had been arrested, but not charged. After his release without charge, the newspapers successfully applied to lift an order preventing his identification. Khuja wanted to maintain a reporting restrictions order. The newspapers said that Khuja was ‘someone suspected by the police of being involved in sexual offences against children’. They wished to publish information about him ‘confined to material derived from the proceedings at the trial’ (§[4]).

 

The majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed: Lords Kerr and Wilson were the minority) noted that the appellant was seeking to prohibit the reporting of matters discussed at public trial. These were not matters where he had any reasonable expectation of privacy. The impact on the appellant’s family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family.

 

The public interest in allowing the press reporting of court proceedings extends to the appellant’s identity, said Lord Sumption. Media reporting of cases depends on the right of the public to be informed about public acts of the state, balanced against the law’s recognition that how a story is presented is a matter of editorial judgment.

 

Finally, what does a name matter? ‘What’s in a name? asked Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (and see Lord Sumption at §[29]). Lord Rodger answered himself:

 

‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, §[39] … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, §[59], ‘judges are not newspaper editors’.

 

Parents’ right to petition Parliament: Southend case

 

In Southend Borough Council v CO [2017] EWHC 1949 (Fam) MacDonald J considered a case in which parents of two children on whom placement orders had been made had publicised information about them on Facebook and had organised a petition on Change.org.  (Whether the mother had appealed against the placement order was not entirely clear to the judge.) By the time he came to deal with the case the parents – representing themselves – had agreed to the local authority’s application that information be removed from Facebook and other media. However, the mother insisted on their right to pursue their petition ‘addressed to the United Kingdom Parliament and the Prime Minister’. The consequences of any such right for freedom of expression was the issue on which MacDonald J gave judgment.

 

MacDonald J described Change.org as a ‘website that allows people or organisations to start a petition. Once a petition is started, members of the public can sign the petition electronically subject to providing their first and last name, their email address and their postcode’ (§[9]). It has ‘community guidelines’ which include particular reference to safeguarding children and their protection.

 

The local authority based their application on their concern to protect a child’s private life. The mother wanted the petition to remain in place ‘so that she could have her say with respect to a decision that she does not agree with’ (§[16]).

 

After an extensive review of the law, the judge agreed with the mother. The reporting restrictions order remained to the extent agreed between the parties, but not including any restriction on the mother’s right by her petition to advertise her disagreement with the court’s placement order decisions.

 

Right to freedom of expression

 

On the facts of this case (not as a general approach to on-line petitions: §[66]) the judge set out his decision at §[62]. He balanced the rights of the parents to freedom of expression under Convention Art 10 (especially ‘parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress’) against the Art 8 right of the children. He applied the ‘ultimate balancing test’ or proportionality (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at §[17]) and held that:

 

[62] … It cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

 

Release of hearings documents

 

The third case is little more than a post-script in all this; but it provides a useful illustration of some of the points considered in ‘Release of court hearing documents’. What documents – when and why? – may a court release to non-parties. What rights to freedom of expression (European Convention 1950 Art 10) do parents have?

 

In Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017), Mostyn J considered a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings, but he does not say so). This might have been clearer if Mostyn J had remembered – or been reminded by one of the nine barristers in court – of the following comment of his:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at §[16]). In law, there are real question on this as explained in ‘Release of court hearing documents’ (above). Thus, in Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1, Mostyn J was dealing with an application by the press for reporting restrictions to be lifted for the ancillary relief hearing of well-known musicians (and see Mostyn J in DL v SL [2015] EWHC 2621 (Fam); [2016] 2 FLR 552, also reported as L v L (Ancillary Relief Proceedings: Anonymity)  [2016] 1 WLR 1259). Save to a very limited extent (eg photographs of arrival at court) a reporting restrictions order was retained. Mostyn J [2015] EWHC 2689 (Fam) at [12] and [13], adopts Sir Mark’s “watchdog” role for the press:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR  r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly.

 

I think Lords Scarman and Bingham – and probably Sir James Munby P (see eg Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, Munby J – would have reminded Mostyn J of the importance of helping the press, in its ‘watchdog role’ – to make sense of proceedings. Transparency in the family courts remains a poor shadow of what it could be if – even if they are let in – the media and public can make no sense of the facts of what is going on.

 

And in terms of rights? The media have rights to freedom of expression as much as do parents to petition parliament; so long as, in each case, the children invloved remain anonymous.