Dear Transparency Project (http://www.transparencyproject.org.uk/)
I admire what you aim to do; though, as you know, I think your title – ‘transparency’ – is a euphemism. Like the President of the Family Division I think you look through the family law procedural telescope from the wrong end (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/) and think that, because it is family proceedings they must be held in private (see discussion of the illegality of Family Procedure Rules 2010 (‘FPR 2010’) r 27.10(1) (below)).
All family courts, like any court in England, in law must be open, subject to certain well-known exceptions (the most obvious being children law, which – I entirely understand – takes up a significant proportion of the work of family courts). Privacy is the exception, and must be justified. This has been explained time and again by the judges, most recently in eg A v British Broadcasting Corporation  UKSC 25. Family lawyers (backed up, to their shame, by their failure to challenge eg FPR 2010 r 27.10) seem to think they are immune from the rule of the common law.
The modern view amongst family lawyers is, entirely correctly, that there should be ‘transparency’. Courts must be open. The press and public must be allowed in – the open justice principle (OJP) – save in the very small number of exceptions identified in Civil Procedure Rules 1998 r 39.2(3) and explained in such cases as Scott & Anor v Scott  UKHL 2,  AC 417 through to A v British Broadcasting Corporation  UKSC 25, and any number of high authorities before, since and in between. The OJP rules: Kennedy v The Charity Commission  UKSC 20. And most of these exceptions are in the range of family proceedings (though the recent case in which the Court of Appeal explained the rules concerned a child in civil court proceedings: JX MX v Dartford & Gravesham NHS Trust & Ors  EWCA Civ 96; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/).
Time to clean up the kitchen
But first, family lawyers, would it not be best if we look around at the kitchen into which the press and public are being so earnestly invited. I enter this caution, not because I do not agree with the OJP, subject to the important exceptions referred to in the cases above. I suggest caution because I fear that the public may be shocked by the grease and grubby black bugs it finds hidden away in the family court kitchen. Its procedural larders hide a variety of illegality and lack of clarity grimes over many parts of its stone-flagged floors.
If I ruled the family law world I’d want to be seen to be sorting out these failings in the family law system as I opened it up – according to what I understood to be the law – to the press and public. I would want to see, not that the substantive law on which it is based is changed – that is a law reform project for another day; but to see that its procedure and administration was lawful and expressed in clear terms.
Illegality and unlawfulness
I use ‘illegality’ in the sense it occurs in administrative law. Lord Diplock in House of Lords characterised it as one of the ‘grounds upon which administrative action is subject to control by judicial review’, that is the foundations of testing the vires (powers of administrators) of public bodies (Council of Civil Service Unions v Minister for the Civil Service  UKHL 9  AC 374):
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By ‘clarity’ I mean – er – ‘clarity’ (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/); or, more especially, that a law text is capable of being understood by the averagely intelligent layperson (‘AILP’). I do not mean that a text is reduced, like Orwell’s Newspeak, to its lowest common denominator. I trust most readers to be able to read a dictionary. An easy example of this is the change from garnishee to ‘third party debt order’. Both start as meaningless, I suspect, to most lay readers, but I bet that most dictionaries will have ‘garnishee’ and a definition; but not a definition of ‘third party debt orders’. Being a composite term, it is likely that TPDOs will be hard to define from most dictionaries.
Clarity in a text does not mean that a reader should be patronised. It is a matter of good manners and common sense; and for lawyers it means respect for the rule of law, and of lawfulness. Lack of clarity is part of the lawlessness of family law procedure, so I will take ‘clarity’ first as a general subject, and then return to other aspects of illegality.
The FPR 2010 rule-makers (the Family Procedure Rules Committee (FPRC)) derive their powers from Courts Act 2003 ss 75 and 76. It has no powers outside those provided to it by ss 75 and 76. Section 75(5) requires FPRC to exercise its powers to make rules –
(5) … with a view to securing that—
(a) the family justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed.
This is a highly subjective test; but to approach an understanding of it, it becomes necessary to define the AILP. Have FPRC done that? I doubt it. It is a test family lawyers must undertake soon. Till then, take for example, the proposed amendment as to FPR 2010 (intended as Part 3A). These amendments are intended to provide for the participation in family proceedings of children and ‘vulnerable witnesses’ (and see eg http://www.transparencyproject.org.uk/guest-post-by-david-burrows-vulnerable-individuals-and-children-in-family-proceedings/ and http://www.familylaw.co.uk/news_and_comment/draft-rules-for-vulnerable-persons-in-family-proceedings#.VdDG8_mqqko). I defy most readers to understand the draft. Even the term ‘vulnerable’ is not defined; and some of the language is needlessly ponderous.
And do the rule-makers seriously expect the subjects of the draft – ‘vulnerable’ individuals and older children in family proceedings – to understand them? If they do, I fear they have failed my common sense and good manners test.
To make sense of s 75(5) an imaginary reader must be defined. Any text which is not regarded as ‘simple’ to him or her is unlawful: that is the statutory criterion. It is the law. It is not a sort of voluntary extra for FPRC to have in mind or not, according to the prevailing mood of the committee membership.
The importance of a clarity test, in more abstract terms, was explained by Lord Bingham as the first rule of his ‘Rule of law’ (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): namely that –
… the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.
That was in pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 days. I wonder if Lord Bingham’s assumption that legal advice should always be available is tenable today? If so the need for clarity only becomes the more pressing still.
I doubt that much of family law procedural law is ‘simple’, ‘simply expressed’ (s 75(5)) or ‘intelligible and clear’ (in Lord Bingham’s terms). If that is the case then all provisions which are not ‘clear’ are outside the law as set down in s 75(5). Each of those not-‘simple’ rules are a cockroach in the family law kitchen into which the public is being welcomed. Cock-roaches should not be in any kitchen, whether or not it is open to the public.
Let’s assume, for now, that the rules are all set down in clear language. Even then, I believe, there are a number which are unlawful.
The easiest to explain is that on which the Transparency Project is based, namely FPR 2010 r 27.10. The majority of family lawyers seem to accept that r 27.10 somehow represents the law. Under the heading ‘Hearings in private’ the rule starts: ‘(1) Proceedings to which these rules apply [ie the vast majority of family proceedings in family courts] will be held in private, except…’; and then two exceptions are set out: that the court otherwise orders, or that another ‘enactment’ (in law that means statutes, rules, regulations and practice directions) ‘provides otherwise’.
Only eight years before FPR 2010 came into effect the Court of Appeal in Allan v Clibbery  EWCA Civ 45,  Fam 261,  1 FLR 565 took a lot of trouble to explain why proceedings under Family Law Act 1996 Part 4 (ie ‘family proceedings’ in terms of r 27.10) were public, certainly to the extent of release to the press of documents arising in them. For family lawyers rules on this subject are governed by the common law (best found as codified in Civil Procedure Rules 1998 r 31.21).
It is basic law that a rule, like r 27.10, cannot override the law (see eg Jaffray v The Society of Lloyds  EWCA Civ 586). The law is (for family lawyers) still the common law and as explained in Allan v Clibbery (above). Rule 27.10(1) cannot reverse the Court of Appeal decision. It is blatantly outside the law, yet it remains part of the rules made by FPRC.
FPR 2010 rr 9.14(4) and 9.16(1) (no disclosure save by Form E or as directed by the court) are so obviously unlawful in the light of MCA 1973 s 25(1) and (2) as explained by the House of Lords Livesey (formerly Jenkins) v Jenkins  AC 424,  FLR 813, that no one takes any notice of the two provisions. They should not be there; and that they are ignored is not a good advertisement for rule-making, and another cockroach in the kitchen.
A letter written by one spouse (or their lawyer) to the other in an attempt to settle a case (normally confidential as between the two of them under without prejudice rule immunity (WPRI); and known as a Calderbank letter, after a Court of Appeal case) can be shown to the court when it comes to costs. The aim is to show reasonable the spouse who sent the letter has been in his/her attempts to settle a case. FPR 2010 r 28.3(8) seeks to reverse this process and to make it unlawful. This may breach principles of public policy – can a rule change ‘public policy’: I only ask? – as set out by the House of Lords in Rush & Tompkins Ltd v Greater London Council  AC 1280. That case said WPRI was ‘founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish’. The case of Calderbank v Calderbank  Fam 93,  3 WLR 586 explains how this works in the case of costs. Rule 28.3(8) is of dubious legality. No family lawyer, as far as I know, has challenged that legality (eg under principles set out in Boddington v British Transport Police  UKHL 13;  2 AC 143).
Of cockroaches and grease in the family law kitchen
So, my friends, before too much fuss about letting the press and public in is made, it would surely be worth trying to clean up the procedural law kitchen. Illegality cockroaches and lack-of-simplicity grease must go. I would make clear and fully intelligible to the AILP the texts – rules and practice directions – on which family law procedure is based (I leave statute law for now). In doing so I would have Lord Bingham in mind and keep a careful eye on Courts Act 2003 s 75(5).
In doing that, I would make certain that every rule in FPR 2010 was in accordance with the law (statute and common law). Procedure serves the law. It is therefore necessary first to define the law and then to ensure that procedure follows it. It is Parliament and, failing that, the judges, who together make the law; not (as Dicey explained) civil servants and administrators (such as FPRC).
 See ‘Does a bell toll for garnishee’  Family Law David Burrows