Reply for the Transparency Review of the Family Division President

This is my reply, submitted yesterday, to The Transparency Review – The President of the Family Division’s Call for Evidence. On Word Press the original paragraph numbers reappear as blobs. I am sorry.

 

FOREWORD

 

Maesteg, Mrs Lewis and open court in Bridgend County Court

 

On 28 March 1934 in the Western Mail reported that at Bridgend County Court Keziah Lewis resisted a claim by her then husband – her second – against properties she owned in Maesteg.[1] The special interest of this case is that it was fully reported by the local paper: no secrecy or private hearing as with family cases in the later 20^th and 21^st century, it seems. Even settlement terms were published in full. That is surely how the House of Lords would have expected Mrs Lewis’s case to be (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). How and why have things changed since 1913, and sometime between 1934 and now?

 

But first, to finish Mrs Lewis’s story. The circuit judge, Rowland Rowlands ‘settled’ the case (said the Western Mail) by proposing that Mrs Lewis pay £310 to Mr Lewis for his claim, with no order as to costs; and that was after, as he had told the court, Mr Lewis had handed over ‘every penny of his wages to his wife’. She agreed and the judge adjourned the case for a month so she could pay the money into court: a sort of early example of a Tomlin order, a form of financial dispute resolution, perhaps.

 

However, the case is of interest as an example – without further comment, then, it seems – of a family law application being dealt with in open court, where now it would generally be in private, if a rule change is regarded as law (I argue below that it is not law). It must be assumed that Mr Lewis’s application was dealt with under Married Women’s Property Act 1882 s 17 which was the standard basis at the time for the court to adjudicate on interests in matrimonial property; and as need be a parallel claim would then be made under Law of Property Act 1925 s 30 for sale if the court adjudged a spouse to have a share. Section 17 survives – though it is rarely used, since 1970 saw the introduction of a regime which enabled – and still enables – the courts to adjust property as between spouses.

 

One of the remarkable facts is that if you make your claim under section 17, or – as is much more likely under matrimonial property legislation (now Matrimonial Causes Act 1973 Pt 2) – the modern (modern?) rules say your case must be in private; but if you are not married but want to sell your family property – jointly owned, perhaps, with your cohabitant – you case will be heard generally in open court. Such is the logic of English and Welsh procedural law in 2020. Yet this state of affairs – probably unlawful, as explained later – would not have been recognised in 1913, the year of Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417. How has substantive law in England (surely the Welsh would not, left to themselves, have done this to the law?) got to this absurd position?

 

Privacy and domestic courts: Magistrates’ Courts Act 1980 s 69

 

At the time the Western Mail went to court concerning Mr and Mrs Lewis, the likelihood is that most family cases (not hers, of course) were in the domestic courts, as they were called till the 1980s (ie the magistrates’ courts). Later these courts were known as family proceedings courts from 1991 as the Children Act 1989 came in; and as their staple then changed from money as it had been till the 1970s to care cases (Children Act 1989 Pts 4 and 5). I can remember countless variation of maintenance hearings as inflation raged in the 1970s (all on legal aid) and the courts could not arrogate to themselves the power to index-link orders.

 

Most of my family law practice for the first five or six years of my career (as a solicitor from 1973) was in domestic courts. We didn’t give it much thought then; but as a matter of law the press and lawyers (like me) could attend any court hearing, as we could till 2014 (Magistrates’ Courts Act 1980 s 69). Courts were open to us (but not to the bar, who are not officers of the court). All the fuss in 2009 over amending the rules to let in journalists etc to family courts did not apply to family proceedings courts. I wonder if anyone told the then President of the Family Division Sir Mark Potter (and the liberal MP who agitated over secret family courts) of s 69 when Sir Mark introduced what is now FPR 2010 r 27.11(2)?

 

In what follows I urge the President to regard open court hearings as the correct end of the telescope; and to say that only those hearings which come within the scope of prohibitions in Scott and amplified by provisions such as CPR 1998 r 39.2(3) should be listed as in private. Beyond that it is not lawful to make family courts private.

 

And what is meant by ‘private’ and what privacy and secrecy (eg in relation to release of documents) must please be clearly defined.

 

David Burrows

7 May 2020

 

I       INTRODUCTION

 

1        FAMILY COURTS’ OPENNESS

 

 A Review and a call for evidence from the President

 

• The question of whether a case is heard in open court is not an arid subject of interest only to a few judges and lawyers. The judiciary are already under attack politically from the present government. In my opinion that is unfair. Of more immediate concern to all of us – lawyer and layperson alike – is the way in which secret family courts operate.

 

• The recent case of the long-standing family judge whose understanding of ‘rape’ and of the meaning of consent was long out-of-date. It may be a dramatic example; but there are many examples of poor practice by judges and magistrates relatively low on the judicial tree which some measure of scrutiny from outside would help to secure a measure of Bentham’s judgment while judging.

 

• With these points amongst many I hope it will be accepted that for all courts their openness to scrutiny is very important. It will be argued here that secret hearings (to adopt the terminology of Dame Elizabeth Butler-Sloss P in Clibbery v Allan) must be justified on clear legal grounds; not just based – as now (FPR 2010 r 27.10) – on a basket rule which directs that all proceedings under one set of rules must be secret.

 

• Sir Andrew McFarlane, The President of the Family Division, has set up a review ‘The Transparency Review: The President of the Family Division’s Call for Evidence’ (the ‘Review’, https://www.judiciary.uk/announcements/the-transparency-review-the-president-of-the-family-divisions-call-for-evidence/). This is intended to look at the current arrangements which regulate access by journalists and the public to, and the reporting of, information concerning proceedings in family courts.

 

• The invitation says that submissions on certain questions are likely to be of particular value, summarised in Ch 6.

 

Content of this reply to the Review

 

• This paper will address the subjects raised by the President’s invitation as outlined by the Summary above. I will try to use the terminology defined by the common law, namely by Dame Elizabeth Butler-Sloss P in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565:

 

[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.

 

• This is a more apt description to its subsequent misuse – certainly as defined by common law – in FPR 2010 r 27.10. ‘Private’, as Dame Elizabeth used the word, could be reserved for those cases where the media etc are allowed in (FPR 2010 r 27.11(2)) and where they are allowed sight of confidential – albeit redacted – documents. If no-one is allowed in – eg adoption proceedings and other proceedings in FPR 2010 r 27.11(1) – ‘secret’ or ‘confidential’ is more apt.

 

• Secrecy will be rare nowadays if release of court material to media and others permitted to attend private hearings became available on terms akin to Cape Intermediate v Dring under a rule similar to CPR 1998 r 5.4C (not, as now, only in appeal cases).

 

Particular types of proceedings

 

• The Table at the end of Ch 6 sets out the present position in law as I understand it in relation to the different types of proceedings.

 

• The issue is the more pressing in relation to domestic abuse with the likely introduction of a domestic abuse bill into Parliament soon; and is made the more poignant by:

 

• The comments on HHJ Tolson of Russell J in JH v MF [2020] EWHC 86 (Fam) (22 January 2020) in the woman’s appeal
• Why Caroline Flack, the TV presenter, was enjoined not to see her ‘boy-friend’, yes, in criminal proceedings. This was surely a private (ie family law), matter, not one which involved the criminal jurisdiction magistrates?
• Shortcomings in magistrates domestic abuse disposals in Sussex who are not applying Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm (though this is in a part of the rules which applies only to children, is not a rule, and must be impenetrable to most JJ).

 

• If press were admitted to any of these types of case at least in theory there would be someone – per Jeremy Bentham and Lord Scarman in Harman – keeping an eye on things for us (at least in theory).

 

• Before any review can be undertaken the law must be defined and, so far as the rules diverge, their divergence – and therefore unlawfulness – must be pointed out and understood. Chapter 2 of this reply is derived mostly from a chapter (so far only loosely edited) in my forthcoming book Open Justice…. (Law Society). I argue that as it stands the present FPR 2010 r 27.10 is ultra vires the rule-makers. It does not comply with the common law. However, I know of no-one who has challenged the rule either by judicial review or on a Boddington basis[2] (and see Ch 3).

 

‘Private’: no definition at law; or it is ignored where there is definition

 

• However, the critical feature of all this is to define what is meant by ‘private’; and here the law cannot be said to be settled. Each of Administration of Justice Act 1960 (AJA 1960) s 12(1), CPR 1998 r 39.2 and FPR 2010 r 27.10 use ‘private’ without any real attempt to define it, save that r 27.10(2) says it means the public ‘have no right to be present’. Each of these provisions will be considered in Ch 3.

 

• This subject is not assisted by the fact that family lawyers, especially those dealing with children cases, tend to use the word ‘private’ also when they mean proceedings between (mostly) parents over their children under CA 1989 Pt 2. For instance in a recent intended talk, published by Transparency Project Sir James Munby talked of the ‘Crisis in private law’[3] by which meant mostly Pt 2 proceedings (some judges are more punctilious (eg Cobb J) and speak of Pt 2 (for ‘private’ law cases) as distinct from Pt 4 (‘public’ or local authority CA 1989 proceedings).

 

 

4        A FAMILY RULES MENTALITY

 

Civil Proceedings rules for family proceedings

 

• Out of the blue – I think – in 1998 the Civil Procedure Rules 1998 rule-makers decided to say that their rules should not apply to family proceedings (CPR 1998 r 2.1(2)); though this did not happen till April 2010. Even senior family judges with a wealth of leading counsel (of greater or lesser experience in family law) did not always realise what had happened and, as in JG v Lord Chancellor and ors [2014] EWCA Civ 656, [2014] 2 FLR 1218, shows they dealt with old rules cases unlawfully under the new rules. JG dealt with single joint expert evidence; but such evidence was not permitted under old law (see Rules of the Supreme Court 1965 Ord 38) still in force when the case started and the Legal Services Commission refused to pay.

 

• The pre-2010 rules operated on the basis that civil proceedings rules – Rules of the Supreme Court 1965 and County Court Rules 1981 – applied unless Family Proceedings Rules 1991 and its predecessors said something different.

 

• It is unclear to me why that cannot be the same now. Many aspects of civil proceedings law are taken in to family proceedings from CPR 1998 (Pt 52 and the costs rules are two examples); many are taken direct from CPR 1998 (such as FPR 2010 Pts 20, 22, 23, 24, 25, 33 and 37; but you must be careful to spot the deliberate divergences: all good for lawyers to inflate their bills). Some aspects have to be derived direct from CPR 1998 because FPR 2010 are silent (disclosure rules); and some race ahead (different rule for statements of truth on one hand) but a less caring regime for civil proceedings than in family or civil proceedings.

 

• That boat has perhaps sailed irretrievably unless we were suddenly blessed with a steadfast and radical FPRC with time on its ill-resourced hands.

 

• The reason for mentioning it is to say – again – that open justice is defined by the common law, just as are all civil proceedings. Procedurally there can be no logic in finding a division in different types of civil proceedings procedural law in relation to such a fundamental right as open justice.

 

Inquisitorial and adversarial

 

• Some judges occasionally suggest that family proceedings law has ‘elements of inquisitorial’ in them (eg Thorpe LJ in Clibbery v Allan). Others, perhaps more detached observers, see the ‘inquisitorial’ label as inappropriate (eg Lord Nicholls in Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 (‘beguiling’); Lord Neuberger MR in Edgerton v Edgerton and Shaikh [2012] EWCA Civ 181, [2012] 2 FLR 273).

 

• The fact is the common law has not defined what is meant by this term. Beyond case management powers there is nothing in the rules (Lord Woolf who designed CPR 1998 – it could be said – was a great proponent of the adversarial system; so his case management scheme is unlikely to have been intended to promote its opposite).

 

• Were an inquisitorial system to be introduced it would make judges have to work harder – especially in financial relief cases where parties are unrepresented. Surely it would be good to have observers into court (for example, and if they would come) to see if judges ever do what they are supposed to do under the rules: eg in financial relief cases, to use the first directions appointment (r 9.15) to define the issues and save costs (including by reducing scope for inquiry by both parties).

 

• I have always said that if I were a judge I’d not let parties leave court till they had defined the issues in a case; and any interested observer or journalist could then have the resultant document – confidentially – to see where the case was going.

 

• The existence of any inquisitorial aspect in family proceedings need not be an impediment to open justice. An inquisitorial system introduced by law might be a good idea. Its introduction could promote open justice.

 

 

4        PRESIDENT’S GUIDANCE

 

President’s guidance on reporting in family courts

 

• Regarding the President’s Guidance as to reporting in the Family Courts, issued on 29 October 2019 https://www.judiciary.uk/announcements/president-of-the-family-division-guidance-as-to-reporting-in-the-family-courts/. I am genuinely very sorry that I did not make representation in the period prior to its issue. I have studied it since the guidance was issued. The ‘guidance’ troubles me for a number of reasons:

 

• Because ‘President’s guidance’ says so will all judges accept an informal procedure which deprives HMCTS of a fee, and where there is a procedure for parties (FPR 2010 Pt 18) in FPR 2010. Had I been asked to advise on procedure, I would not have proposed the informality suggested by the guidance.
• How easy will it be for non-parties to make a formal application (eg where Tickle failed in Re R initially)?
• Does the guidance apply to all family proceedings or only to children cases: probably to all.
• ‘Standard orders’ for costs are not available in family cases, especially where one party may be a large commercial concern.

 

Procedure for varying reporting restrictions orders

 

• The guidance deals with how ‘reporters’ may apply to vary reporting restrictions orders (ie orders made by the court to restrict them, or publicity in general, in the reporting of proceedings in family proceedings courts: RROs); though non-parties other than ‘reporters’ (accredited media representatives in Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f)) are affected by the proceedings to which the guidance relates.

 

• The guidance nominally applies to all family cases ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the [family courts]’ (para 1); though its references to eg Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) (contempt for reporting of children proceedings) suggest it is aimed mostly – entirely even? – at children cases.

 

• The guidance follows case of Re R (A Child) [2019] EWCA Civ 482 (15 February 2019) where a journalist appealled against a judge’s reporting restrictions order in care proceedings. That case was largely academic (as the judgement makes clear), in the sense that it decided nothing: terms had been agreed by the parties as to relaxation of the reporting restrictions originally ordered long before the appeal came on.

 

• It is unclear why the case was not restored before the judge under Matrimonial and Family Proceedings Act 1984 s 31F(6): could he not have made the contra mundum order which the Court of Appeal said required everyone to turn up in court, as was proposed in similar – but contested order – circumstances by Peter Jackson LJ in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447? Perhaps everyone involved wanted the publicity of a synthetic Court of Appeal hearing.

 

• The aim of the guidance is ‘to assist the court, the parties and the media in circumstances where a reporter attending court may wish to apply to vary reporting restrictions’ in family courts (para 1). It sets out the main rules (FPR 2010 rr 27.10 and 27.11(2)(f) and (3)) and statutory provisions (AJA 1960 s 12(1)(a) and Children Act 1989 s 97(2) which formally restrict journalists).

 

• Little is said of the remedies available to the court, which many journalists find oppressive: namely criminal contempt proceedings against journalists and their newspapers if AJA 1960 s 12(1) is held to have been breached. (Do we know how many lawful committal applications have been made and a journal or other publisher of material found guilty?)

 

A procedure for release or varying reporting restrictions orders

 

• The guidance tells the reader what should formally be done to vary or release a RRO propose; but then, in non-statutory terms (see comments on role of ‘guidance’ below), it tells journalists what they may get away with:

 

8 First, an application to vary or lift reporting restrictions can be made by way of an application to the High Court in Form C66, accompanied by a draft Order and served in accordance with the procedure for a RRO. However, such a procedure (which will usually need to be accompanied by payment of the requisite fee) should not be necessary in many cases. It is a time-consuming and expensive process and may generate additional unnecessary public expense or delay in a straightforward case.

 

• We are not told why a form (Form C66) appropriate to wardship only is required, when any family proceedings may be involved. Nor is it clear what a RRO procedure is?

 

• Para 8 continues with informal guidance given by Sir Andrew:

 

• Where a reporter wishes to apply for reporting restrictions to be lifted after the hearing is over, this, too, may be done without a formal application being made, for example by way of an email to the court or the judge’s clerk (copied to the parties). In such cases the court must ensure that all parties are notified of the application and given an opportunity to respond (para 8(c)). (We are not told if it is anticipated that all non-parties can benefit from this to ask for restrictions to be raised.
• Courts should be ‘astute to assist reporters’ (but not other bona fide non-parties?) seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested (unless there is good reason not to do so) (para 8(d)).
• At the start of a hearing attended by a reporter the judge should enquire if such an application is to be made and, if there is none at that stage, invite ‘the reporter’ to alert the court if the situation changes, either at a convenient stage during the hearing or at its conclusion (para 8(f)). It remains to be seen whether courts operate this injunction – it is more than ‘guidance’ – for media representatives or any other non-parties.

 

Criminal contempt and reporting restrictions

 

• Para 8(e) caries the reminder – though it does not explain exactly why – that any release of court material in children proceedings is covered by the contempt provisions of ‘AJA 1960 s 12 and CA 1989 s 97 and remain confidential’.

 

• The guidance recommends a procedure for application for variation with the media representative preparing a draft order; a hearing being arranged if agreement cannot be reached; and that a full judgment should be given on any application. At para 10 the guidance continues:

 

The court, and any advocate appearing for parties to the proceedings, should provide assistance in terms of the relevant law and procedure to be followed. Any party opposing the application may then make submissions. The reporter should then be given an opportunity to reply.

 

• Judges have often been quick to remind parties that it is not for them – the judges – to give advice (especially in this area to publishers of information, such as the media). And, yes, so far as it is known, advocates will help the court with procedure and the law involved in a case.

 

Costs and President’s guidance

 

• It will be recalled that this guidance applies ‘in circumstances where a reporter attending court may wish to apply to vary reporting restrictions in a case before the’ court; though it is likely that it will be applied for any non-party (eg researcher or ‘legal blogger’; parties’ friends or relations etc) who wishes to attend court. It applies to all forms of family proceedings (not just to children proceedings). Sir Andrew’s guidance on costs is therefore surprising (some might even say ‘bold’):

 

16 Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.

 

• Three of the more celebrated recent cases on reporting restrictions orders and attendance at court by media representatives since the new scheme came in, are Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J (brother of Lady Diana), Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), [2015] 1 FLR 19, Roberts J and Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J (Liam Gallagher). They were not, of course, ‘children cases’. I do not know what any order for costs was, but I doubt the court adopted a ‘standard’ approach. In Appleton the press was formally a party.

 

• In family proceedings generally, orders for costs are rare, as between private parties (eg parents) or if a local authority applies for a care order; but I am by no means sure that most judges would say the same ‘standard’ rules apply for media representatives and their employers (the journalist in Re R was a free-lance). The general rule is that costs are in the discretion of the court, save where statute or a rule says otherwise (Senior Courts Act 1981 s 51(1)).

 

• Given that the applicant for the variation is generally a commercial body or occasionally a free-lance journalist – ie not a parent, foster parent or local authority caring for children – it seems likely, save where a variation is agreed, that costs issues will often arise. And suppose the unsuccessful applicant was Dr Pelling or a journalist with a political or campaigning approach to family proceedings: should they expect a ‘standard’ no order where they had taken up the time and costs commitment of other parties? Would it be fair to those successful respondents to ignore SCA 1981 s 51(1) and CPR 1998 Pt 44?

 

II       OPEN JUSTICE

 

1        INTRODUCTION

 

Family proceedings: hearings ‘in private’

 

• To look at the law on open court and private hearings it will first be necessary to be clear on what is law, since in this field the rule-makers have tried to make ‘law’: eg that all hearings (with some exceptions) under Family Procedure Rules 2010 (FPR 2010) r 27.10 are to be held ‘in private’. They have no power to do this. The common law says something different from the rule (as will be explained), and cannot be changed by a rule.

 

• Rule 27.10 deals only with ‘hearings’ (the heading to the rule) or ‘proceedings’ which are to ‘be held in private’. It will be assumed here that it is intended that ‘hearings’ are to be in private. But that is all. There is much more to privacy of a hearing – or not – than how a case is dealt with in court. The law on secrecy of courts and open justice impacts on a number of other subjects, such as:

 

• Documents: publication
• Anonymity
• In what terms can any reporting restriction order or other restraint of permissible publicity be made?

 

 

2        OPEN JUSTICE PRINCIPLE

 

Open justice and the common law

 

• The concept of open justice is a common law principle. This was fully explained (in words since approved by the Supreme Court in eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558 and Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455) by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (above). In that case Toulson LJ explained the roots of open justice in common law as follows:

 

‘[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.’

 

• The principle was explained further by Lord Reed in A v British Broadcasting Corporation (above). He emphasised the principle of open justice; but explained that there were also circumstances when it may be necessary to depart from it:

 

[29] Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott [(below)], in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor… was litigation concerning a secret process, ‘where the effect of publicity would be to destroy the subject-matter….

 

‘Compelling justification’ to depart from open justice: Scott

 

• All that said, Lord Reed concluded paragraph [29] of his judgment by emphasising the need for derogation from the open justice principle to be justified on a ‘compelling’ basis. He stressed the point that ‘All of their Lordships [in Scott] stressed the need for a compelling justification for any departure from the principle of open justice’.

 

• The case still cited almost daily in all courts in the United Kingdom (criminal and civil, family and administrative tribunals) is still Scott & Anor v Scott (above). And, it should be recalled, Scott is a family case (from a time when a distinction between ‘civil’ and ‘family’ proceedings would probably not have been understood). In 1913 it is unlikely that their lordships would have recognised any distinction between civil proceedings and family proceedings.

 

• In Scott Earl Loreburn explained the open justice rule (at 445) as follows:

 

The inveterate rule is that justice shall be administered in open Court. I do not speak of the parental jurisdiction regarding lunatics or wards of Court,… I speak of the trial of actions including petitions for divorce or nullity in the High Court. To this rule of publicity there are exceptions, and we must see whether any principle can be deduced from the cases in which the exception has been allowed. It has been held that when the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed.

 

• The case of Scott is described laconically in the law report’s head-note as: ‘The Probate, Divorce and Admiralty Division has no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency.’

 

‘The means to an end’

 

• The ‘means to an end’ aspect of Viscount Haldane’s speech in Scott was taken up taken up Lord Devlin in Re K (Infants) [1965] AC 201, (1963) FLR Rep 520. The case concerned whether or not a mother of two wards in proceedings concerning their future should see opinion reports obtained by the Official Solicitor which she had not been allowed to see; and was the issue of whether or not she saw the reports a matter of law or was it for the exercise of the discretion of the judge.

 

• For Lord Devlin the ‘important issue’ was whether there was there any question of a discretion at all. That there was, it had been argued, arose from the fact that the administration of justice flowed from the prerogative. Well, yes, said Lord Devlin, but:

 

… To say this of the jurisdiction parens patriae is as true as, but no truer than, to say it of the administration of justice as a whole. All justice flows from the prerogative. Save in so far as their powers are limited by statute, all judges do as they think fit. But what “they think fit” is not determined by each individually and ad hoc; it is determined by their collective wisdom and embodied in judge-made rules…. They include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties.

 

• Certain rules are ‘so fundamental’ that they must always be observed; but even then, it was only necessary to observe such rules if to do so ‘serves the ends of justice’ (at 238):

 

The rule in point here is undoubtedly one of those…. But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded.

 

Open justice: a modern view

 

• Scott remains, over 100 years later, the barometer for all courts and tribunals – criminal, civil (including family) and administrative. For example reference to the importance of open justice principles occurred very recently in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where, giving  a judgment with which all justices agreed, Lady Hale said

 

[36] The requirements of open justice applied to all tribunals exercising the judicial power of the state. The fact that magistrates’ courts were created by statute was neither here nor there [she was quoting Toulson LJ in Guardian v Westminster at [70]]. The decisions of the House of Lords in [Scott v Scott] and of the Court of Appeal in [GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984] and R v Howell [2003] EWCA Crim 486—respectively a family, civil and criminal case—were illustrations of the jurisdiction of the court to decide what open justice required (at [71]). Hence the principles established in Guardian News and Media cannot be confined to criminal cases. They were clearly meant to apply across the board. Nor has anyone suggested why the jurisdiction in criminal cases should be wider than that in civil. More to the point, they have since been approved by this court.

 

• As this passage shows, the principles laid down by Scott apply in all jurisdictions – criminal and civil (including family, of course) – and at all levels of court, from magistrates upwards.

 

Open justice principle: exceptions summarised in CPR 1998

 

• The modern law in relation to exceptions to the exceptions to the open justice principle can best be seen summarised in CPR 1998 r 39.2(3) (which is in almost identical terms to FPR 2010 r 7.16(3) for open court defended divorces). Rule 39.2, under the heading ‘General rule – hearing to be in public’, sets out at r 39.2(1) the common law default position, namely that ‘a hearing is to be in public’. CPR 1998 r 39.2(3) lists the types of proceedings which may justify the court to order that a hearing be in private; and r 39.2(4) deals with anonymity.

 

• CPR 1998 r 39.2(1) states ‘the general rule… that a hearing is to be in public’ and then (in full) goes on at r 39.2(3) to set out where a party may apply for, or the court may order, a hearing to ‘be held in private’:

 

(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

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

(b) it involves matters relating to national security;

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

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

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

(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

 

• Rule 39.3(4) deals with anonymity:

 

‘The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.’

 

 

3        FAMILY PROCEEDINGS WHICH ARE NOT CHILDREN PROCEEDINGS

 

(1)        OPEN JUSTICE AND PRIVATE HEARINGS

 

Private hearings

 

• All sources – the common law (starting from Scott), AJA 1960 s 12(1) and CPR 1998 r 39.2(3) are agreed: children proceedings are to be in private/secret, save for those rare occasions where (say) a court seeks publicity for a children case (though this does not mean all parties will be anonymous: see eg Plymouth City Council v Wilkins & Ors [2019] EWFC 70 (19 November 2019), Baker LJ as a High Court judge). At the other end of the spectrum of family proceedings, divorce is unquestionably to be in open court. For practical purposes this will rarely be of any effect since contested divorce hearings are very rare. Decrees nisi are formally declared in open court.

 

• Between these two ends of the spectrum of family proceedings there are the variety of family cases which, on Scott – Clibbery v Allan principles, should be heard in open court. Mostly they are not heard in public because courts and parties accept the restrictions of r 27.10. A principled approach (see discussion of Holman J’s approach below) might require that exceptions from the open justice principle come only within the categories of case listed in CPR 1998 r 39.2(3). The effect of this approach is summarised in Table 1.

 

 

(2)        TYPES OF FAMILY PROCEEDINGS AND OPEN JUSTICE

 

Declarations and application covered by FPR 2010 Pt 8

 

• FPR 2010 Pt 8 incudes a variety of applications which are family proceedings. Here only those in Chs 5 (declarations under Family Law Act 1986 ss 55-57) and 6 (applications for permission to apply for financial relief after overseas proceedings under Matrimonial and Family Proceedings Act 1984 (MFPA 1984) Pt 3) will be touched on. FPR 2010 r 8.27 says a Ch 6 hearing will be in private; but no reference to format is mentioned in Ch 5. In principle these would normally be in open court: they deal with status (like divorce).

 

Financial relief proceedings

 

• Subject to what Holman J says (see below) on financial relief cases and their being dealt with in open court, there seems to be no clear rule whether cases will be anonymised or not. Release of documents will fall into two categories, and subject (mostly) to court order:

 

• Before a hearing, and despite what is said by Mostyn J in Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 in principle there would seem to be no reason why parties’ skeleton arguments and other summary documents should not be sent out, for example to non-parties such as the media.
• Many documents will be covered by the ‘implied undertaking’. They cannot therefore be ‘used’ outside the court proceedings save as permitted by the common law best summarised by CPR 1998 r 31.22: that is to say, unless the court gives permission.

 

• The above must be seen through the prism of Clibbery v Allan which permitted Ms Clibbery to release documents to the press from her ‘private’ hearing (where not covered by the implied undertaking). If in doubt, a party should obtain permission from the court.

 

Domestic abuse: Family Law Act 1996 Part 4, Part 4A and Female Genital Mutilation Act 2003

 

• The types of proceedings which are mostly set out in Family Law Act 1996 Pts 4 (domestic abuse) and 4A (forced marriage protection orders) and Female Genital Mutilation Act 2003 all, to differing degrees, have aspects which call for privacy (they may involve a child, or for other reasons may demand privacy). Often, however, they involve allegations and the trial of issues which depend on evidence which is much the same as in criminal trials.

 

• If a child or other very personal reasons (eg FGM) are not involved it is unclear by what rationale such cases are they tried in private (other than because the rules says so); for it is the case that apart from the overarching requirement in r 27.10, each of the parts of FPR 2010 which deal with each of these subjects separately says that they must be heard ‘in private’: FPR 2010 rr 10.5 and 11.7.

 

• Clibbery v Allan (above) was an application under FLA 1996 Pt 4. Ms Clibbery was permitted to release papers in the case to the press. FPR 2010 changed none of that. Keene LJ, the only non-family lawyer sitting in the Court of Appeal commented that perhaps more attention should be drawn to whether such cases should be in private:

 

[121] … But in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private, and as and when a court comes to exercise its discretion on this matter it will, as a result of Human Rights Act 1998 s 6, have to take into account article 6(1) of the European Convention. It will not be possible in all cases to show that an application for an occupation order falls within one of the exceptions to article 6(1) where the press and public may be excluded. That burden is likely to be particularly difficult to discharge where children are not involved.

 

Committal proceedings

 

• All committal proceedings, save where exempted by CPR 1998 r 39.2(3) exceptions, are heard in open court.

 

Family civil proceedings

 

• Family cases which proceed under CPR 1998 – such as Trusts of Land and Appointment of Trustees Act 1996 and Inheritance (Provision for Family and Dependants) Act 1975 – are governed by CPR 1998 r 39.2. The more rigorous – logical, even – approach of the common law to privacy of hearing, anonymity, publicity and release of documents applies.

 

 

(3)        OPEN JUSTICE AND FINANCIAL RELIEF PROCEEDINGS

 

A view of open justice in financial relief proceedings

 

• There is divergence of view on whether cases in this middle variety of cases can be illustrated by the views of Holman J set out in financial relief proceedings in Luckwell v Limata. There seems to have been no opposition to Holman J’s direction that he would sit in open court. Amongst his reasons for sitting in open court in this, a family case, said Holman J (and echoing such earlier cases as Scott and Guardian v Westminster and their quotation of Jeremy Bentham), were:

 

[4] … It is only if the public are able to see and hear for themselves how the proceedings unfold in the court room, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability. Jeremy Bentham famously said: ‘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.

 

• As will be seen in Ch 3 in Clibbery v Allan Thorp LJ linked secrecy in financial relief proceedings with – as he saw it – the operation of the implied undertaking not to ‘use’ (CPR 1998 r 31.22) disclosed documents outside the court process. The problem with this assessment as a reason for secrecy is that the implied undertaking applies in all civil proceedings; and its application in a particular case is not generally regarded, outside matrimonial financial relief proceedings, as a reason for secrecy in the hearing of a case.

 

 

 

III       ‘PRIVATE’ UNDER FPR 2010: A SOURCE?

 

1        INTERFERENCE WITH DUE ADMINISTRATION OF JUSTICE

 

A criminal contempt

 

• As explained in Ch 4 an application to commit for the criminal contempt provided for in Administration of Justice Act 1960 (AJA 1960) s 12(1) depends on a hearing being in ‘private’. The contempt depends on there being a ‘publication’ of information from ‘any court sitting in private’. The contempt is criminal since it is said to be interference with the due administration of justice (though no reader will find that terminology in the 1960 Act).

 

• Suppose that a lawyer were asked to advise a woman (Annie) in domestic abuse proceedings or a journalist (Bruce) who reports on Annie’s domestic abuse proceedings. Annie has documents about her former partner which are of interest to the press; or Bruce wants to write about the way a judge has treated Annie’s rape allegations in court (under Family Law Act 1996 (FLA 1996)).

 

• As will be explained later Family Procedure Rules 2010 (FPR 2010) rr 10.5 and 27.10, which regulate hearings for domestic abuse cases, says that both sets of proceedings are to be heard in ‘private’. The common law say there are the criminal contempt consequences if either Annie or Bruce publish anything.

 

• Is it the law that their case must be heard in private; or is FPR 2010 unlawful? Any competent lawyer, will check the lawfulness of any provision in issue in a case; especially where there is a question of a client being sent to prison. In this instance this will involve:

 

• Checking the source of the term ‘private’ and of the common law open justice principle (Pt 2)
• Reviewing what power a rule-maker has to change the common law (Pt 3); and finally
• By what procedure can a defendant to a s 12(1) contempt application raise the question of the legality of rules (Pt 4)?

 

Legal aid

 

• A’s legal aid position – by no means clear, like so much in this jurisdiction – was explained in Family Law for March 2020 after The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2) [2019] EWHC 3065 (QB) (15 November 2019), Chamberlain J.)

 

 

2        FAMILY PROCEEDINGS: HEARING ‘IN PRIVATE’

 

Family Procedure Rules Committee

 

• FPR 2010 are made under powers in Courts Act 2003 ss 75 and 76 by Family Procedure Rules Committee (FPRC).

 

• FPR 2010 r 27.10 says:

 

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.

 

• Special mention is made of hearings of FLA 1996 Pt 4 (occupation and non-molestation orders) and 4A (forced marriage protection order) and Female Genital Mutilation Act 2003 applications, and that they are to be in private unless the court says otherwise (FPR 2010 r 10.5 and 11.7(1)). These rules are derived from provision for FLA 1996 applications in Family Proceedings Rules 1991 r 3.9(1).

 

• The common law open justice principle is explained in Ch 2. Rules rr 10.5, 11.7(1) and 27.10 are in direct opposition to the common law. Is this lawful; what power to amend the common law does FPRC have; and what can a party to proceedings (or a non-party such as a journalist) do about it? These are the sorts of question I would ask in advising Annie or Bruce in response to their committal application.

 

Courts Act 2003: source of delegated legislation

 

• The first thing to ask is what are the powers of FPRC to make rules? The statutory source of the powers of FPRC to make FPR 2010 is Courts Act 2003 s 75 and 76 (just as the source of powers to make CPR 1998 in Civil Procedure Act 1997). As relevant here, ss 75 and 76 provide as follows:

 

75 Family Procedure Rules

(1)There are to be rules of court (to be called “Family Procedure Rules” [(FPR)]) governing the practice and procedure to be followed in family proceedings.

(2) [FPR] are to be made by … the [FPRC].

(3) “Family proceedings” means—

(a)proceedings in the family court, and

(a)proceedings in the Family Division of the High Court…

(5)Any power to make. . . [FPR] is to be exercised 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.

 

76 Further provision about scope of Family Procedure Rules

(2) [FPR] may —

(a)modify or exclude the application of any provision of the County Courts Act 1984, and

(aa)provide, subject to any provision that may be made in rules under section 31O(1) of the Matrimonial and Family Proceedings Act 1984, for any functions of a court in family proceedings to be carried out by officers or other staff of the court.]

(2A)[FPR] may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.]

(3)[FPR] may modify the rules of evidence as they apply to family proceedings.

(4) [FPR] may apply any rules of court (including in particular Civil Procedure Rules) which relate to—

(a)courts which are outside the scope of [FPR], or

(b)proceedings other than family proceedings….

 

• The rules when made are to be passed by the negative resolution procedure as required by Courts Act 2003 s 79(6). That is to say, there is no debate on them or on any amendments to them unless MPs call for it.

 

• As can be seen, it is s 76 which contains powers to ‘modify’ particular areas of practice or to exclude specific provisions. Parliament has been specific in this.

 

Changes to the common law

 

• As can be seen, nothing is said in Courts Act 2003 about altering any aspects of the common law. Had Parliament wanted to permit the FPRC to interfere with a fundamental right (preserved even in European Convention 1950 Art 6.1), it must say so and in express terms (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328).

 

 

3        COMMON LAW AND SUBSTANTIVE LAW

 

Common law

 

• The common law (judge-made law) can only be changed by statute law, a point made recently and emphatically in R (on the application of Miller) v The Prime Minister [2019] UKSC 41, [2019] 3 WLR 589:

 

[40] The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law. We have already given [an example] of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament….

[41] … Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public (Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ([R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513] at pp 567-568)….’

 

• Substantive law (statute law and common law) can only be changed in the following circumstances:

 

• Express statutory provision – Provided this is done in clear terms the common law may be changed by statute (ie by Parliament);
• Delegated legislation – A statute may say that delegated legislation (such as Family Procedure Rules 2010 (FPR 2010) in certain very restricted circumstances) can alter the law; or
• By the courts – A judge (having full regard to the rules of precedent), and generally only the Supreme Court, may in rare circumstance redefine the terms of the common law.
• Henry VIII powers – Where an earlier statute says so, a government minister by later order may amend earlier legislation.

 

• Such power as there is to amend the common law is important in the present context since the open justice principle is entirely a creature of the common law. It is affirmed, but by no means created, by European Convention 1950 Art 6.1.

 

• The common law aspect of open justice was trenchantly confirmed by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (3 April 2012):

 

[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.

 

Rules and amendment of the common law

 

• It is important to distinguish what is said by the substantive law, from what delegated legislation (such as FPR 2010 rr 10.5 and 27.10) says; and then to be clear what limitations there are as to alteration of substantive law by delegated legislation. This was explained by Lady Hale in the Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and see the same point made by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75: he described the point as ‘trite law’) where she summarised the extent to which rules (and this includes FPR 2010; though in that case she was referring to civil proceedings rules) could alter substantive law:

 

[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].

 

CPR 1998 r 39.2(3) and Clibbery v Allan

 

• The content of the list in CPR 1998 r 39.2(3) summarises the common law as it has developed since Scott v Scott (as explained in Ch 2). A family judge would be likely to follow it if application were made for a case to be heard in open court (eg in a domestic abuse hearing). The extent of the rule (in contrast to Administration of Justice Act 1960 s 12(1)) was considered by Dame Elizabeth Butler-Sloss P in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at eg [24]-[27] and [68].

 

• For now it will be assumed that CPR 1998 r 39.2(3) summarises the circumstances in which any civil proceedings (including family proceedings) may, at common law, may be considered for hearing in private (ie in secret and to the exclusion of the public). If the list in r 39.2(3) is used it is possible to reflect on the extent what is said about open justice in FPR 2010 is in fact – and in law – within the powers of FPRC?

 

• Until April 2014 ‘representatives of newspapers or news agencies’ could attend the family proceedings courts (family magistrates’ court hearings before the Family Court) as of right (Magistrates’ Courts Act 1980 s 69(2)(c)); so for these courts for press attendance r 27.11(2)(f) was not necessary.

 

 

4        PROCEDURE FOR OPPOSING ‘PRIVATE’ CLAIMS

 

A Boddington application

 

• So what is to be done for Annie or Bruce (the woman in domestic abuse proceedings or the journalist who reports on those proceedings)?

 

• The answer to this may depend on whether application is made during or after the hearing; and whether it is made by a party (A as the FLA 1996 complainant) or the journalist after the hearing. Procedure will vary (I don’t share the president’s optimism as to how a non-party journalist applies in ; but that is for another day). For now A’s adviser is looking at the underlying legal principles and for a means of challenge: how, when and in which court?

 

• Mr Boddington (of Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143) was a commuter from Brighton and a smoker. The railway company banned smoking on the trains on which Mr Boddington travelled. He was prosecuted for breach of a byelaw which was said to prevent him from smoking. 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. How was that collateral challenge to the legality of the bye-law to be dealt with by Brighton stipendiary magistrate?

 

• The House of Lords held that the magistrate had been wrong to rule that Mr Boddington could not raise the underlying 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 appeared in court charged with breach. (He had not raised it in any earlier judicial review proceedings.)

 

• Mr Boddington was entitled to 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’.

 

• In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ held 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) – as in the case of FPR 2010 r 27.10 (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 subsidiary legislation arises, can the question be dealt with in the court where it is raised?

 

To be dealt with in the court where raised?

 

• 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 magistrates, their legal adviser and court staff excluded Mr O’Connor and his supporters from Aldershot Magistrates’ Court when his case was to be heard. 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 Guardian v Westminster Mags (above).

 

• The Divisional Court set out the words of Jeremy Bentham (Collected Works, vol 9, p 493 and vol 4, p 316 (respectively), which are particularly apt in the present context:

 

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.

 

• This issue must be resolved by the court on the day; not by incurring the extra time and expense of judicial review in an already busy Administrative Court list (and see Chief Adjudication Officer v Foster [1993] AC 754 and comments on expediency of Lord Reid).

 

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 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 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.

 

Family court application by a non-party

 

• The Boddington case with 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 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: FPR 2010 r 27.11(2)(f)).

 

 

5        OPEN JUSTICE PRINCIPLE AND FAMILY PROCEEDINGS: A     LITTLE HISTORY

 

Thorpe LJ and Clibbery v Allan

 

• In Clibbery v Allan Thorp LJ (at [90]-[104]) provided a history of family proceedings and publicity in relation to them. Most of his treatment of the subject was in relation to financial relief proceedings (which was nothing to do with the issue in Clibbery v Allan which related to an occupation order in Family Law Act 1996 proceedings, where no children were involved). Of the pre-1970 position he said:

 

[99] … Of course there were ancillary issues dealt with in chambers to settle disputes as to maintenance or as to children. These ancillary proceedings were always held in private and it was never doubted that publication of such private proceedings was prohibited. Of course where the chambers proceedings related to children, their exceptional character was never in doubt.

 

• Of post-1970 practice, Thorpe LJ does not mention any law (outside children proceedings), to support the view that even financial relief proceedings should be in private, still less to say why domestic abuse proceedings should not be open (save where children are involved). Family Proceedings Rules 1991 says very little save r 3.9 above for domestic abuse proceedings.

 

• Of financial relief proceedings, Family Proceedings Rules 1991 r says only if a question is referred to a judge (as old-style registrars might do; but which rarely happened after the 1970s) then a haring of the question was always ‘in chambers’. Perhaps it was a given that the district judge’s inquiry would anyway be in chambers.

 

Practice of family lawyers, contrary to Scott?

 

• A justification for financial relief proceedings being in secret is the fact of the implied undertaking not to use (ie pass on to third parties) documents disclosed inter partes; but even this is a weak justification since other civil courts where parties are bound by the undertaking manage to hold hearings (subject to other exceptions in CPR 1998 r 39.2(3)) in open court.

 

• The application then is before the court in which the hearing is to take place; or has taken place. The question of release of material is live as an issue during or after the hearing, as much as open justice is an issue at the outset of any hearing.

 

• Open justice principles remain important not just on theoretical grounds. If a person may be committed to prison on what may prove to be a whim of rule-makers, and a whim which is largely unsupported by law, then that is an important factor for a court to consider before it hears any alleged contempt application. And this consideration must proceed on legal principle, not just on the practice developed since Scott v Scott – and often contrary to it – by family lawyers.

 

 

IV       PRIVATE, SECRET AND IN CHAMBERS

 

1        PRIVATE HEARINGS

 

‘Private’: a meaning under the court rules

 

• Both sets of civil courts rules – Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – use the term ‘private’ of court hearings, but with little attempt in either to define ‘private’, save to say, in the case of FPR 2010 r 27.10(2), that ‘private’ is intended to dispense with any right the public may have to come into court.

 

• Administration of Justice Act 1960 (AJA 1960) s 12(1) uses ‘private’ without defining it. As will be seen s 12(1) suggests that publication of information from certain types of proceedings ‘in private’ may be a ‘contempt of court’. A person found to be in contempt may be sent to prison.

 

• It should be difficult to send anyone be sent to prison if they do not know that what they have done is wrong. This aspect of knowledge of wrong-doing is made more stark since ‘private’ is not defined (and see Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA).

 

• The law is not clear on the guilty knowledge point either. That guilty knowledge is required for committal for criminal contempt (as is a prosecution under s 12(1)) is not defined in s AJA 1960.

 

• In the previous Chapter I looked at how a person could challenge whether family law proceedings privacy applied to their case, and prevented publication of material by them (contrary to Administration of Justice Act 1960 s 12(1)). This Chapter looks at what the ‘private’ term means in law, and as against the common law open justice principle.

 

 

2        PRIVATE HEARINGS: MEANINGS IN LAW

 

‘In private’: statute and rules

 

• AJA 1960 s 12(1)[4] under the heading: ‘Publication of information relating to proceedings in private’ says (as applicable here):

 

‘(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to [wardship and the inherent jurisdiction];

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b) where the proceedings are brought under the Mental Capacity Act 2005 [etc];…

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.’

 

• Proceedings for maintenance of a child will be in private if in family proceedings (eg Children Act 1989 Sch 1 or MCA 1973) and caught by s 12(1)(a)(iii). An appeal under Child Support Act 1991 to the First-tier Tribunal or Upper Tribunal will be in open court, though information as private as in any family financial relief proceedings may be considered by the tribunal judges.

 

• The court, not a rule and then only where it has power to do so, can expressly prohibit publication of information (s 12(1)(e)).

 

• Therefore if the court is sitting in ‘private’ and one of the restrictions in s 12(1) applies then that provision creates a contempt. Probably – though the law is not clear – only if a person intended to breach s 12(1) (ie guilty intent also known as mens rea) can they be successfully committed for failure to comply with s 12(1).

 

• Nothing is said in s 12(1) about the majority of family proceedings (ie outside children proceedings); though financial relief proceedings may be caught by another common law rule, namely that a party may not publish documents disclosed under compulsion (eg ‘full and frank disclosure’)).

 

• Subject to that publication of documents and other material from family proceedings other than children proceedings appears not to be caught by s 12(1), even though a hearing was dealt with ‘in private’. (I add, though it is of little direct relevance here, that Children Act 1989 (CA 1989) s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ a child involved in proceedings; but the prohibition comes to an end once the proceedings have been concluded (Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11; Re J (A Child) (contra mundum injunction) [2014] 1 FLR 523, [2014] 2 FCR 284 Sir James Munby P).)

 

‘Private’ and civil proceedings

 

• By most definitions of the term family proceedings are civil (in that they are not criminal); but since April 1999 they have been ghettoised by CPR 1998 r 2.1(2), so that they have eventually, been given their own set of rules (many of which follow or are derived from CPR 1998). All that said, the rules committee and family judges have affirmed that CPR 1998 does indeed echo or codify the common law (or provide a way that family proceedings can be conducted where FPR 2010 are silent).

 

• CPR 1998 r 39.2(1) requires that all civil proceedings be in public, save as set out in r 39.2(3), the main part of which says:

 

(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

(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;..

 

• I suggest that this is a codification of the common law as it now stands; and that this list should be what guides family judges who seek to follow the law, not the rule-makers.

 

‘In private’ and the common law

 

• In the absence of any statutory definition of ‘in private’, in secret and so on, what does the common law say as to what ‘private means’? The subject of what is meant by private (or in chambers) in the period since the drafting and introduction of CPR 1998, really comes alive with Forbes v Smith [1998] 1 All ER 973, [1998] 1 FLR 835, Jacob J (21 December 1997) where he gave permission to publish a judgment given in chambers in bankruptcy proceedings. In so doing he said (at FLR 836):

 

The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets’ case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents.

 

• Less than two months later, at a time when the Civil Procedure Act 1997 had been on the statute book for a year, and drafting of what became CPR 1998 was well under way, the Court of Appeal gave judgment in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (12 February 1998). The case concerned claims against a tobacco company, on behalf of a variety of claimants. They said their cancer gave them a cause of action against the company.

 

Public access to chambers hearings

 

• In Hodgson the court reviewed the ‘exceptional’ circumstances for hearings in camera recognised in Scott and emphasised the distinction between ‘chambers’ on the one hand and ‘secret’ and or ‘private’ hearings on the other (at 1070). The judgment of the court was given by Lord Woolf MR who was then chairing the committee which was preparing CPR 1998:

 

A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in [Scott] or the court sits in chambers and the case falls in the categories specified in [AJA 1960 s 12(1)] (which include issues involving children, national security, secret processes and the like).

 

• The difficulty the court confronted (as they put it at 1071) was that the subject of what was meant by ‘private’, in chambers etc was ‘virtually free from authority’. There was nothing in case law to guide them. They, the judges, must therefore frame the law. They did so in the light of their assertion of clear principle:

 

However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted.

 

• It is clearly stated that as far as possible public should have access to chambers hearings, and to what happened at hearings – that is publicity including of judgment. This will always be subject to the exceptions in AJA 1960 s 12(1). And this statement of principle from the Court of Appeal was re-enforced by a differently constituted court in Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, CA (judgment on 30 September 1999)

 

[24] We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in [Hodgson v Imperial], in which he said (at 1071), that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.

 

 

3        ‘PRIVATE’ AND FAMILY PROCEEDINGS

 

Clibbery v Allan

 

• So far as there was then, or is now, any distinction between the two types of proceedings, the case law so far relates to civil proceedings. Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 saw the Court of Appeal looking at whether documents from a family hearing ‘in private’ could, even so, be passed on for publication to the press. They held that such publication was permissible. Dame Elizabeth Butler-Sloss P considered Hodgson and provided the following definition:

 

[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 summarised a variety of circumstances where in family proceedings – then governed still by Rules of the Supreme Court 1965 and County Court Rules 1981 alongside Family Proceedings Rules 1991 – were conducted in chambers, sometimes because the rules said so, sometimes merely out of undefined habit or practice.

 

• In Department of Economics, Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] EWCA Civ 314, [2005] QB 207 the Court of Appeal – Mance LJ – provided a synthesis of the earlier decisions of the Court of Appeal in Hodgson and Clibbery v Allan. The case concerned whether a judgement in an arbitration should be published where, as a result of a mistake, a summary had been published by Lawtel. The judge said no. Arbitration proceedings were generally in private. The Court of Appeal allowed publication of the summary, but said the judgment as a whole should remain private.

 

• Mance LJ referred to what Dame Elizabeth had said, seconded by Keene LJ,

 

[26] Keene LJ agreed with Dame Elizabeth Butler-Sloss P and endorsed (at [120]–[121]), “the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified”, adding that “in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private”. He observed that the burden of showing that such an application falls within one of the exceptions to European Convention 1950 Article 6(1) “is likely to be particularly difficult to discharge where children are not involved”.

 

• Perhaps Keene LJ’s criterion – ‘whether a hearing in private can be justified’ – can be commended to the rule-makers; and to any judge before whom r 27.10 may be challenged.

 

Scott v Scott: no absolute rule of open court

 

• There is no absolute rule as to when a case should be heard in private or in open court: R (Pelling) v Bow County Court [2000] EWHC 636 (Admin) QB Div Ct recalls that point. Subject to that and to the constrictions of s 12(1) anyone who wants to go into a private hearing or to publish a judgment from a chambers hearing is entitled to draw attention to the fact that the statute law and rules neither of them clearly say what is meant by ‘in private’.

 

• The common law asserts – or appears to do so – that there remains a distinction between open court hearings, hearings ‘in private’ and hearings ‘in secret’. At the very least, in the absence of any court order to the contrary (the Moscow case was an arbitration, and there was already contrary order) judgements from a hearing ‘in private’ can be published (subject to any anonymisation).

 

Protected parties, family proceedings and privacy

 

• When can a hearing ‘in private be justified’? The clearest instance of a right to privacy is where the proceedings relate to a protected party or a child. A child and protected party in the context of family proceedings are defined in the respective sets of rules. Procedurally a child and a protected party’s representation are dealt with together in CPR 1998 Pt 21. In family proceedings representation for a protected party is dealt with under FPR 2010 Pt 15 and for a child under FPR 2010 Pt 16 Chapter 5.

 

• The approach of the House of Lords in Scott to open justice and the exceptions to it summarised in Scott. This approach – with additions, such as for questions of national security and for confidential information generally – defines the law still more than 100 years later. Scott was a family case, decided at a time when no distinction between rules for civil proceedings and for family law (proceedings now covered by FPR 2010) would have been recognised by judges.

 

 

 

V       RELEASE OF COURT MATERIAL

 

1        INTRODUCTION

 

Release of court material

 

• If you are a journalist or anyone else who wants to go into a court hearing then you will make little of the case, unless the court says you can have case material in advance of the hearing, or unless a party to the case or their representative, has talked to you (and they should be careful if they do so). There is no provision in the common law which clearly states what material can be released to those who are permitted to attend court, and to make sense of the proceedings they are hearing; though there are cases at the highest level which assert the desirability of such release.

 

• Statute, so far as it makes provision, only threatens committal, as stated by AJA 1960 if – in relation to children proceedings – publicity is given to court material. There is no positive assertion that material can be released for proceedings to be understood by those attending.

 

• This Chapter looks specifically at the question of what court material may be released before and during court proceedings; and then to the tangentially related questions of collateral ‘use’ of material disclosed between parties; and then of what information may be passed on by parties to children proceedings.

 

• The Chapter therefore proceeds as follows:

 

 

Release of court material

 

• The subject of release of court material has three main components:

 

• Obtaining documents for, for example, better understanding of a hearing which a non-party is entitled to attend: considered in this Chapter;
• Use of documents disclosed by compulsion as between the parties, and mostly subject to an implied undertaking that they will not be used further outside the court proceedings (not directly relevant here); and
• Release of documents from a case after a hearing.

 

 

2        COURT MATERIAL: RELEASE BEFORE OR DURING A HEARING

 

Release of skeleton arguments and witness statements

 

• Release of court material is bound up with open justice principles; for if a person permitted to come into court cannot read the same documents – or most of them, suitably anonymised – as those taking part in the proceedings (especially the judge and the parties and their advocates (if any)) – then it is difficult to see how the proceedings, at least to them, are ‘open’. They cannot properly understand what is going on in court if they do not have access to the same material as the judge; and if they cannot properly understand what is going on in court it is difficult to see how it can be said that justice is ‘open’. So what material can be released to those permitted to attend family courts otherwise dealing with cases in private.

 

• As long ago as July 2010 the subject of release of documents to the media and the public generally was addressed by Munby LJ as part of his extra-judicial ‘Lost opportunities: law reform and transparency in the family courts’ (The Hershman-Levy Memorial Lecture for 2010 1 July 2010 especially at pp 14 and 15). He analysed what he called ‘transparency’ under three headings:

 

• First, access to the proceedings.
• Second, reporting of the proceedings.
• Third, and more generally, disclosure of information out of the proceedings.

 

• His ‘access’ – the first point – is the subject of this Chapter. On the subject of release of court material for non-parties who attend court better to understand the case Munby LJ said:

 

Access to the proceedings does not involve only the question of whether the media (or indeed the public generally) should be able to go in to court and watch the proceedings. It also involves the difficult question of whether and to what extent those allowed to watch the proceedings should also be allowed access to court documents, because unless they do much of what is going on is likely to be completely incomprehensible, given how much of the relevant material nowadays is in writing and will have been pre-read by the judge.

 

• Munby LJ asked himself: ‘How far does one go?’ The journalists say, he explained, that for them ‘there is no point in being in court unless they can understand what is going on’, which is the point made by judges at least since Lord Scarman in Harman v Home Office and by Toulson LJ in Guardian v Westminster. They cannot have the court bundle, he emphasised;[5] but he went on:

 

… But if they say ‘of course we accept we cannot see everything, but what we ought to be able to see, and, of course, it will all be published anonymously, is, for example, the care plan, the position statements, the skeleton arguments’ what then? There are very real questions and the answers are far from obvious, but the emerging jurisprudence of the Strasbourg court suggests that there may soon be powerful arguments based on Article 10 that the media will be able to deploy….[6]

 

• Munby LJ concluded his comments on ‘Access’ for non-parties and journalists as follows:

 

The traditional system is neither principled nor, increasingly, such as to command public confidence. Surely both principle and pragmatism demand that we open the family courts, that we drastically relax the present access restrictions.

 

• This subject will be considered in Part 4 of this Chapter, alongside Munby J’s case of Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415 but it remains the case that in pre-hearing release terms (as opposed to release of material after a hearing) the law has moved hardly at all since 2010 on pre-hearing release. As will be seen in the next Chapter, it is beginning to move in relation to release of material after a hearing.

 

‘To understand the case’…

 

• Toulson LJ replied to this submission by reference to four cases which, in the context of release of court documents, illustrated the extent to which the courts could release documents to help the media and public understand hearings. First there was Lords Scarman and Simon in Harman v Home Office [1983] 1 AC 280 at 316 where they said that, yes of course a judge must ensure ‘reasonable expedition’ in a case; but he must also be ‘concerned to ensure that justice not only is done but is seen to be done in his court.’

 

• They then related these concerns directly to open justice principles; for without a proper understanding of what is going on they reasoned – because the judge was reading a variety of material in the case – how can it be said a trial is both open, and justice be seen to be done in the course of proceedings:

 

And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.

 

• Toulson LJ went on next to consider the judgment of Lord Bingham CJ in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-512. Lord Bingham’s starting-point was Lord Scarman in Harman v Home Office; and he drew attention to the extent to which, in the sixteen years since that case, the requirements for skeleton arguments, chronologies and so on had increased both to assist the court and to improve expedition:

 

Since the date when Lord Scarman expressed doubt in Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

 

• So, said Lord Bingham, the likelihood is that even ‘an intelligent and well-informed member of the public, present throughout every hearing in open court’ would not be able fully to understand the hearing; and that this was likely to impact on the extent to which justice could be said to be open. Efficiency and openness must be balanced:

 

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.

 

 

3        COURT MATERIAL: RELEASE BEFORE OR DURING A HEARING IN FAMILY PROCEEDINGS

 

Release to non-parties in family proceedings

 

• The question of to what documents an observer of any court proceedings may have access, must be answered by reference to the common law in open court proceedings; and then by the common law as seen from the point of view of proceedings in private to which an observer has access (eg under FPR 2010 r 27.11(2)).

 

• In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn Jwas considering a reporting restrictions order on a proposed hearing of financial relief claims in relation to two well-known musicians. Under the existing order the fact of the case could be publicised as could photos of the parties arriving at court. Otherwise no other person could be named. Financial information could not be reported on. The husband and wife both applied for the exclusion of the media under FPR 2010 r 27.11(3).

 

• The issue before Mostyn J was to reconsider the reporting restrictions order and to decide whether it should be lifted or modified. Indeed he defined the issue in the following terms (italicised passage below):

 

[5]     All I am being asked to decide today is whether the existing order, which restricts the reporting of the proceedings, should be lifted, or modified, at this point [italics added]. I am not being asked to decide whether His Honour Judge O’Dwyer [the judge who was to try the financial relief application] should publish his judgment or, if he does, whether it should be anonymised or redacted, and if so, how. That is a matter solely for him…. I should also make clear that it will be for him, in the light of his decision about what to do with the judgment, to revisit the reporting restriction order which I will now make.

 

• Mostyn J said that the parties’ child, and Gallagher’s three children, must not be identified, in accordance with the terms of FPR 2010 PD12I (which applies to an unrepresented child in family proceedings). In a passage which has been regarded as a correct statement of the restrictive state of the law on release of court material for the understanding of proceedings, Mostyn J went on to consider ‘press’ access to documents:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR 2010 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. Further still, FPR 2010 PD 27B paras 2.4 and 5.2(b) confirm the ‘unaffected’ continuance of the existing reporting restrictions for such proceedings held in private….

 

• Rule 29.12(1) expressly gives the court power to release them to non-party applicants on reasonable application being made. What r 29.12(1) actually says it not what Mostyn J says it says. And of course what Mostyn J says, incorrectly, has been made still more incorrect by Cape Intermediate v Dring.

 

 

 

 

VI       CONCLUSION: OPENNESS AND FAMILY PROCEEDINGS

 

1        OPENNESS AND FAMILY COURTS HEARINGS IN 2020

 

Openness: law in opposition to practice

 

• The common law on openness in justice is that all proceedings of any sort should be heard in open court. The idea that family courts are in any way different from any other courts – criminal or civil – should be rejected as unlawful and contrary to basic English law principles.

 

• Family proceedings have developed their own brand of secrecy for family proceedings. As explained in Ch 2 this has been largely without reference to common law principles (save in the case of children proceedings).

 

• The President is now asked to look through the other – the correct, I believe – end of the family proceedings hearings telescope. He should please start from the premise that the law is that all proceedings, like any other, shall be heard in open court. Certain family law proceedings – perhaps even a majority – may justify a hearing in secret or even in private; but that this must be on the same principles as any other civil proceedings (ie CPR 1998 r 32.3(2)).

 

A review of practice: what are the principled reasons for secrecy or privacy?

 

• Looking at the hearings telescope will involve a careful review of practice and of how the privacy impulse has developed over the past 100 years in family proceedings (eg in relation to financial relief). A full review of, and adherence to, the law can, I believe, produce a principled and relatively easy way to determine the forum for hearing in any type of case.

 

• Privacy may be what family judges ‘favour’ (see eg the comment in Family Court Practice on FPR 2010 r 27.10). I doubt Bentham, the House of Lords in 1913, Toulson LJ in 2012 or indeed the Supreme Court today would have appreciated that; and anyway, what is the law?

 

• If the law is first – and clearly – defined by this Review it can provide a principled starting point for any review of openness (or not, in appropriate cases) in family proceedings: whether to be in open court, private or secret. What is proposed here, for the reasons in Ch 3, is not just a question of tinkering with rules.

 

• Once forum (ie form of hearing) is defined, application can be made – if a party is advised, or so chooses – for the court to sit in some way other than that set out in the open justice rules. Application could be made for a hearing in private or secret; some could be in private some open; screens and other means of partial privacy (well known to Youth Justice and Criminal Evidence Act 1999) could be introduced.

 

• If hearings are in open court, a concession to normality could be introduced by preventing advocates wearing robes (and barristers from wearing wigs). To that extent family courts could keep a measure of exceptionalness from other common law courts; and perhaps lead the way….

 

Openness in civil proceedings family cases

 

• Open court hearings are the norm in which an increasingly large proportion of family cases are dealt with. A substantial proportion of couples must rely on CPR 1998 proceedings to resolve their differences over ownership of unmarried property (when any privacy of their hearing is dictated by CPR 1998 r 39.2(3).

 

• Since St Valentine’s Day 2020 (as it happens) another group of couples has joined the family law cohabitants outside FPR 2010’s pale, namely those who have a ‘non-qualifying’ marriage ceremony (perHM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020)). As cohabitants their case would normally be dealt with in open court; and would be almost invariably if under CPR 1998 (eg for a declaration under ToLATA 1996: see eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513, Mostyn J).

 

• Family lawyers therefore confront the absurdity not only that the law on which cohabitation cases is resolved is very different from the law which governs financial relief on marriage breakdown; but that different procedural rules apply between one and the other, especially as to whether their financial case is heard in secret/private or in open court.

 

‘Private’ hearings; and release of court documents

 

• Unless otherwise ordered all proceedings in secret will be anonymised. All other proceedings will have parties named, unless the court directs otherwise, or orders that some parties or witnesses should be anonymous.

 

• Release of documents comes with open justice. Where a person, journalist or other, askes for documents in advance of a hearing certain documents – anonymised where appropriate – should be provided. This should be in accordance with principles set out in equivalent to CPR 1998 r 5.4C and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (29 July 2019); and applies whether a case is in open court or in private. To provide a copy of the court bundle is not likely to be appropriate.

 

• Documents to be released will be for the judge to decide (per Cape Intermediate v Dring), but might include:

 

• Skeleton arguments (or position statement, if different)
• Witness statements (without enclosure)
• Experts reports
• Threshold document in care proceedings
• Case management directions
• Any schedule of assets

 

Blanket ban on openness: application of CPR 1998 r 39.2(3)

 

• A blanket ban (as now, with minor exceptions) on openness should please be rejected as unprincipled. The table at the end of this paper seeks to set out the main types of family proceedings and to say how they are dealt with now.

 

• Using the table below, or similar, administrators and lawyers with the President must please find a way of harmonising the hearing of family proceedings with the law. The most immediate must be domestic abuse where a new bill is expected soon; and where parts of that bill may seek to harmonise family, civil (ie per CPR 1998) and criminal proceedings. After all, the same facts can give rise to claims in all three jurisdictions, where only family is in heard in private. Openness – with appropriate protections for the complainant (screens, evidence in a separate room: if criminal proceedings can do it (eg under Youth Justice and Criminal Evidence Act 1999), surely family judges can do better) – in JH v MF [2020] EWHC 86 (Fam) (22 January 2020), might have tamed some of the inappropriate excesses of the circuit judge appealed from.

 

• Openness must be the rule, with privacy – even occasionally secrecy – the exception where need be. A criterion to achieve this would be to apply the equivalent of CPR 1998 r 39.2(3) to all Family Procedure Rules 2010 cases and to list the ‘private’ or ‘secret’ cases to which the FPR 2010 equivalent applies.

 

Clarity of expression

 

• And finally, openness of justice must go hand-in-hand with clarity of expression of law. The law must be clear and ‘clearly expressed’ (see Courts Act 2003 s 75(5)) especially where liberty is in issue (see eg contempt committal under Administration of Justice Act 1960 s 12(1)(a)).

 

[1] I acknowledge with thanks the revival of this press report by Rhys Taylor, a barrister. Mrs Lewis was his great, great grandmother

[2] Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143; and see ‘A voyage around Mr Boddington’ by David Burrows (ICLR blog, October 2019) https://www.iclr.co.uk/blog/commentary/a-voyage-round-mr-boddington/

[3] http://www.transparencyproject.org.uk/the-crisis-in-private-law-by-sir-james-munby/

[4] Of matters requiring attention in the family courts Sir James Munby said in a recent talk (6 February 2020: as published) on ‘private law’ cases http://www.transparencyproject.org.uk/the-crisis-in-private-law-by-sir-james-munby/: ‘there is an urgent need to address the problems associated with section 12. It has become increasingly clear that section 12 should be repealed, to be replaced, no doubt, with much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world.’

[5] A point seconded by the more recent Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429

[6] European Convention 1950 Art 10

Domestic abuse and secret courts

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 20^th century – even 19^th 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: family law developments in 2019

A common law principle

 

It is well-known that Civil Procedure Act 1997 and the Civil Procedure Rules 1998 made under that Act ghettoised family proceedings, with effect – eventually – from April 2011 when Family Procedure Rules 2010 (FPR 2010) were finally made. From then civil proceedings rules (as had hitherto been the case: Rules of the Supreme Court 1965 etc) ceased directly to apply to family proceedings. The law which governs all proceedings is the common law; but procedure fissiparates increasingly as time goes on.

 

Eminent amongst common law principles is open justice rules, briefly, elegantly and authoritatively defined by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

“[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.”

 

So – over the past twelve months – how has the common law been considered and developed in the area of open justice, in family proceedings and in other common law cases which apply to family law? The subject is not just a question of saying a hearing will be ‘in private’ (FPR 2010 r 27.10) or not (see eg FPR 2010 r 30.12A). It encompasses also such subjects as:

 

• Release of court material before, during and after a hearing
• Anonymity of parties and witnesses
• Reporting restrictions and publication of law reports and of what happens in courts

 

Court material

 

The high point of open justice litigation in 2019 is the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where Mr Dring, on behalf of asbestosis victims (not parties to the litigation), sought release of documents in a case which concerned asbestos and which had been settled. A High Court master made a wide release order. The Court of Appeal narrowed this order; and against cross appeals by both parties the Supreme Court upheld the appeal order. The position defined by the Supreme Court is significant on release of court materials (and see this) from all forms of court proceedings (civil, family, criminal etc).

 

The Supreme Court examined to what extent can any court in its inherent jurisdiction and under CPR 1998 r 5.4C (or principles derived from that rule in non-CPR 1998 jurisdictions) direct release of court material to a non-party. Giving further Supreme Court impetus to Guardian v Westminster (above) it was held that the following material can be released by order of a court:

 

• skeleton arguments and other written submissions (Cape Intermediate in CA at [69]; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984);
• documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
• witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports, but not exhibits to these; and
• any other document which it is necessary for the court to release to comply with the open justice principle.

 

The significance of this for family lawyers is that the Supreme Court emphasised that these principles apply to all proceedings regulated by the common law, which includes family proceedings. Certain redactions and anonymisation – for example children’s, and maybe certain parties’, names – but application can still be made within the terms of Cape Intermediate v Dring.

 

On release of court material generally see here. A lot remains to be done to help those attending court to make sense of hearings and if they are to be properly said to be open court hearings (as Lord Scarman pointed out nearly forty years ago in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). But that is another case, another day…

 

Anonymity

 

Anonymity is a crucial aspect of the open justice principle (see for example, PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251 and Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351); but the principles on which it is based in first instance family proceedings – and as the law now stands – is difficult to define, outside children proceedings. For example in CB v KB [2019] EWFC 78 (20 December 2019), Mostyn J the parties were accorded anonymity; but I am told it is not difficult to identify the pop-singer from the description provided on the back-ground to the formation of his group set out by Mostyn J in [6] and [7] of his judgment. In a recent children’s case, anonymisation extended only so far as to move by one letter of the alphabet all the parties’ initials; so if initials would identify them the judge’s anonymisation was limited.

 

On anonymity generally, the position in the Court of Appeal is clear (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426): full publicity of names in the absence of a court order. The position in children proceedings (as to the children) is clear. But beyond that? For example, of published financial relief first instance proceedings of the 20 I have noted only six are anonymised.

 

So how to advise a client whose proceedings are to be heard in a family court? A starting point must be AAA and ors v Rakoff and ors [2019] EWHC 2525 (QB), Nicklin J (now Lupu etc -v- Rakoff etc) where a group of pole dancers were refused anonymity in their proposed litigation. As explained in “In praise of the common law: sources of law and open justice” the case concerned claimants, nine of whom were pole dancers.  They brought proceedings seeking to restrain the defendant from using video footage of them. The first defendant was a group called ‘Not Buying It’, which campaigns against sexual entertainment venues. Anonymity was the first – and main – issue dealt with by Nicklin J.

 

Anonymity: withholding a name and reporting restrictions

 

Any anonymisation application has two parts said Nicklin J: (1) to withhold the name of the relevant party in the proceedings; and (2) a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO)). To deal with these orders the judge summarises the case law – including Guardian v Westminster and Cape Intermediate v Dring (both above) which, as he says, underlies the open justice principle:

 

“[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.”

 

In Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB), Martin Spencer J a claimant applied for damages for psychiatric injury arising out of the stillbirth of her daughter. She was denied anonymity (CPR 1998 r 39.2(4) on anonymity applied). Further, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case (a similar point to that made by Gloster LJ in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (application for anonymity in appeal proceedings must be made on notice and should be made in the appellant’s notice). By contrast in XW v XH [2019] EWCA Civ 549 the appellant successfully applied for anonymity in a reporting restrictions order in the Court of Appeal (CPR 1998 Pt 52 and r 39.2(3)). She was an appellant wife who applied in advance of the hearing of her financial relief appeal. The Court of Appeal order was made due to interests of the parties’ child whose European Convention 1950 Art 8 rights were held to outweigh the Art 10 rights of the press.

 

In Re TT and YY [2019] EWHC 1823 (Fam) Sir Andrew McFarlane P, sitting in the Administrative Court and Family Division allowed a media appeal for removal of an anonymity order. The man wanted to be registered as father of a child to whom he had given birth, after his transition to male gender. The father had courted extensive publicity. Only the anonymity of the child was to be protected, said Sir Andrew.

 

Criminal and family proceedings

 

Plymouth City Council v Wilkins & Ors [2019] EWFC 70 – a case in which Baker LJ sat as a High Court judge (he had heard the case before his elevation) – has attracted a variety of publicity, mostly because it was heard as care proceedings (Children Act 1989 Pt 4) where the judge held that both parents were responsible for their child’s injuries; whilst in criminal proceedings only the mother was convicted. Charges against the father were withdrawn from the jury. The father sought a review of the decision in the care case; though, in effect, he withdrew from those proceedings. Baker LJ upheld his original Pt 4 proceedings decision.

 

All parties agreed that the child’s name should not be publicised. The mother said, subject to that, that judgments should be published without anonymisation. The father agreed, save that he wanted his name anonymised. The local authority and children’s guardian were neutral. The parents’ names were both publicised in the criminal proceedings. The judgments should be published, said Baker LJ, with only the child’s name withheld.

 

This subject will be of still more significance if the Domestic Abuse Bill – which combines respectively civil with criminal jurisdictions – finds its way onto the statute book. The critical feature in the Plymouth cases was not publicity, but respective standards of proof (crime and civil). That issue, as far as I can tell, is not dealt with in the draft bill.

 

Reporting restrictions

 

The subject of reporting restrictions – which are so central to the publication limitations in AJA 1960 s 12(1) – received little case law publicity. In AB (Application for Reporting Restrictions: Inquest) [2019] EWHC 1668 (QB) Pepperall J dealt with a local authority’s application for a reporting restrictions order (supposedly under Children and Young Person’s Act 1933 s 39) for an inquest to protect evidence as to a 17 year old and her suicide from members of her family. Proper notice had not been given to the press ([11]-[18]). The application was refused. As framed, in the High Court, it could only be in the inherent jurisdiction (see [24]); and Pepperall J was not prepared to exercise any inherent jurisdiction he might have. If any application could be made it must be in the coroner’s court.

 

A persistent them of case law in the area of restrictions on open justice is that if application is to be made for any restriction, it must be made on proper notice (despite what is said on the subject in President’s guidance as to reporting in the family courts, 3 October 2019 (below)) to the court and, as need be, to the Press Association (see per INDO (above)). The role of an accredited media representative (FPR 2010 r 27.11(2)(f)) and their party status is not dealt with in the guidance; nor was it considered by R (A Child) (below).

 

R (A Child) [2019] EWCA Civ 482 was a journalist’s successful attempt to have a reporting restrictions order lifted and where facts had already been aired on the mother’s successful earlier appeal to the Court of Appeal. The hearing was a rare example of the Court of Appeal permitting itself to be used for a publicity exercise. There was no real issue on this appeal. Everyone in court agreed that the judge had been wrong in the order he made and that a reporting restrictions order was inappropriate. The case is of no precedent value.

 

Reporting restrictions: publication of family courts material

 

The wild-west of civil courts is represented by committal applications for alleged contempt of court. The Court of Appeal records a number of examples of circuit judges shooting from their hips. Recent examples – neither family cases where individuals were recently and unlawfully sent to prison – include: Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 (claimant witness sent to prison immediately with claim struck out where he sent emails to his solicitor and spoke to another person: Court of Appeal appealled for “A measured approach” by judges) and Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55 (imprisonment for breach of an order, where no self-incrimination privilege warning was given, no legal aid and no chance for proper mitigation).

 

The family equivalent of these cases was Re Nasrullah Mursalin [2019] EWCA Civ 1559 where a committal order (suspended) was made by a circuit judge was set aside. A paralegal mistakenly sent family proceedings papers (contrary to Administration of Justice Act 1960 s 12(1)(a) and FPR 2010 r 12.73(1)) to an immigration tribunal. The appellant had no proper opportunity to obtain legal aid or to plead mitigation. More serious points, not explored by the Court of Appeal, were:

 

• Did a circuit judge even have power to make any order on a committal application (no)?
• Was this ‘publication’ at all in terms of AJA 1960 s 12(1)(a) (probably, yes); but
• What is the guilty intent (mens rea) required for a case under s 12(1) (see eg Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA: over 40 years old, but still important law and a very strong unanimous Court of Appeal).

 

A model for dealing with committal was provided by HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin), the QB Divisional Court consisting of Sharpe LJ and Warby J, including:

 

• Breach of a Crown Court Contempt of Court Act 1981 s 4(2) reporting restrictions order (postponement of reporting of proceedings held in public where reporting might prejudice administration of justice) ([45]-[66]);
• Breach of the rule as to strict liability on a respondent where immoderate words are used ([67]-[77]); and
• Interference at common law with administration of justice ([78]-[88]).

 

Contempt was found under all heads and the respondent was later given a sentence of nine-months (decision appended to report).

 

“Guidance” on release of material

 

The President’s guidance as to reporting in the family courts, 3 October 2019 is not law, still less is it common law: it is merely guidance. It is an odd document if only because the President seems to be advising that process be issued without court fee or proper notice to anyone. I would expect most judges to be unhappy with such a free-wheeling approach, even in family courts. I am sure HM Courts and Tribunal Service will be wary, and the Treasury will not allow a court fee to be waived (if it finds out).

 

The President’s office confirms the guidance applies to all family proceedings; yet of costs (para 16) the guidance says “the standard approach as to costs in children cases will apply” (ie almost invariably no costs order). Why “children cases” where many family cases may have nothing to do with children? Costs orders are an area where a variety of law applies to the miscellany of family proceedings (in addition being a question for the discretion of the judge: Senior Courts Act 1981 s 51(3)). If it is a commercial media organisation which has made the application and put all parties to expense, why should they not pay if their application is not successful (CPR 1998 r 44.2(2): costs of successful party generally to be paid by the unsuccessful party)?

 

Anonymity for pole dancers

Private hearing; but when to be anonymised?

 

If you have to tell a client whether their family court hearing will be dealt with anonymously or not (ie their names to remain confidential), the best thing they can do is toss a coin – certainly if their hearing is before a High Court judge. Hearings of family cases under Family Procedure Rules 2010 (FPR 2010) are – says a court rule (FPR 2010 r 27.10) – to be ‘in private’. That does not tell you whether your name will be public or not, save in the case of a child and (probably) of parents in children proceedings. Just because your case is heard in private is no guarantee your name will be kept secret.

 

For example, of all the first instance financial relief cases in front of High Court judges, over the past ten months, seventeen were reported; and of those seventeen, only four were anonymised. The remaining thirteen were all between named parties. Because the hearing is in private does not mean the parties will be anonymous. This proposition – the link between a private hearing and anonymity – draws support from CPR 1998 r 39.2 which treats as one step that parties may seek an order for a hearing (or part of it) to be in private (r 39.2(3)). Anonymity is dealt with as a separate application to the court under CPR 1998 r 39.2(4)).

 

In the Court of Appeal your name will unquestionably be public (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426), unless for exceptional reasons – see summary in CPR 1998 r 39.2(3) – you can persuade a Lord/Lady Justice you should be anonymous; or that the appeal is by or on behalf or about, a child or, perhaps other protected parties (CPR 1998 Pt 21).

 

Application for anonymity

 

So, on what basis can a party seek to be anonymous in civil proceedings? This was considered in detail by Nicklin J in AAA (and others) -v- Rakoff (and others) [2019] EWHC 2525 (QB) (30 September 2019). The case concerned claimants, nine of whom were dancers and at a club known as Spearmint Rhino (the tenth claimant).  They brought proceedings seeking to restrain the defendant from using video footage it had obtained within the clubs. The first defendant was the chief executive of the second defendant, a group called ‘Not Buying It’, which campaigns against sexual entertainment venues.

 

The finer CPR 1998 aspects of the case can be found at ‘Service of the claim form issues, anonymity, expedited trials and … Spearmint Rhino’ . This article looks at the question of anonymity which was the preliminary issue in the case dealt with by Nicklin J.

 

Nicklin J explained that any application for anonymisation has two distinct parts: first an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 1998 r 16.2 (‘a CPR 16 Order’: perhaps PD16A para 2); and, secondly, a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO). Though the law outlined here applies in family proceedings there is no equivalent to CPR 1998 PD16A para 2).

 

Nicklin J draws on the INDO guidance, especially paras 9 to 14. He then moves to a tour de force to summarise the fundamental jurisprudence which underlies the open justice principle:

 

‘[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.’

 

The judge cited recent case law, namely R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (considered further here). Both of these cases were concerned with release of court material to non-parties. Elemental to both was the open justice principle on which English courts operate.

 

Open justice principle and anonymity

 

From these two important cases Nicklin J concluded:

 

‘[29] … That there are principally two categories of case in which derogations from open justice can be justified: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated: Attorney-General -v- Leveller Magazine Ltd [1979] AC 440, 457E…[and see Scott -v- Scott [1913] AC 417 per Viscount Haldane LC at 437-439].’

 

The second category of derogation – relating mostly to private matters – was summarised by Nicklin J as follows:

 

‘[30] Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses….’

 

The judge has form in this area of work. In AAA he provides a text-book summary of the law on open justice principles. And he refers a couple of times to Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB), (15 February 2018). When you look up that case you discover Nicklin J is the judge there as well. In both cases he shows how firm is his grasp of the relevant case law.

 

The conclusion for AAA and her fellow pole-dancers was that they would be denied anonymity (it does not seem they claimed a private hearing). The anonymity remains pending any appeal, and pending the disposal of that appeal if permission is given for it.

 

Khan and domestic abuse

 

From a family lawyer’s stand-point Khan is instructive. It was a harassment case between two brothers where both were refused anonymity, and were told their case would be heard in open court. Nicklin J made the following comment, which may be instructive when it comes to domestic abuse cases in family courts:

 

[90] … In most harassment claims, the disclosure of private information in open court is simply an incidence of the litigation and that is no different from any other civil case. But, unlike privacy claims, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court…. An anonymity order therefore cannot be justified on that basis. If there are discrete pieces of the evidence, that engage significant Article 8 rights, then the way to deal with that is not by blanket anonymisation, but by [targeted measures]. Put simply, any greater derogation from the principle of open justice is not necessary.

 

If anonymity is denied to two brothers, why not the same for couples who have been living together, and one (or both) make allegations that the other has been abusive? Unless the privacy interests of children are engaged (concerning which see Keene LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at [120]-[122]), there is no reason why domestic abuse cases should be heard in secret; and probably every reason why they should be heard in open court.

Open court hearings: thoughts for family law reform

1        INTRODUCTION AND BACKGROUND

 

Straws in the wind

 

Work has been done by the President, Sir Andrew McFarlane P, and his predecessor on publication of judgements; and ‘legal bloggers’ are allowed into courts otherwise closed by Family Procedure Rules 2010 (FPR 2010) r 27.10. A new draft practice guidance – not a practice direction? – is at large (in draft or made as guidance?) on ‘Guidance as to reporting in the family courts’.

 

The Family Procedure Rules Committee (FPRC) has ruled that hearings under FPR 2010 (unless otherwise stated) are to be ‘in private’ (FPR 2010 r 27.10); but what this means beyond the actual hearing of the case (eg as to release of documents and information to those attending court, anonymisation, publication of material from a hearing and so on) is not clear.

 

Perhaps the time is appropriate for review of the following:

 

• What is the position of release of court material after Guardian v Westminster (below) and Cape Intermediate v Dring (below);
• If the Supreme Court can release parties’ skeleton arguments (see in R (on the application of Miller) v The Prime Minister [2019] UKSC 41 (24 September 2019)) cannot other courts do so, anonymised where suitably directed;
• Is it time for review of Sir James Munby P’s Transparency

 

Open court: the default position

 

The default position for all common law litigation is that it be heard in open court, unless exceptional circumstances dictate that part or all of a hearing be heard privately. In the recent R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster) Toulson LJ explained this as:

 

[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….

 

In the recent Supreme Court case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (29 July 2019) the court was considering the jurisdiction of the courts generally to permit release of court material ton non-parties. Of the context for their decision they said:

 

[34] …However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.

 

All courts at whatever level are subject to the open justice principle.

 

Family proceedings and open justice

 

Family Procedure Rules 2010 (FPR 2010) r 27.10 says that all hearings’ or family ‘proceedings’ should be in private save where stated otherwise (eg divorce: r 7.16(1)):

 

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.

 

In Guardian v Westminster Lord Toulson emphasised the substantive law – the common law – source of the open justice principle:

 

[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.

 

In Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and see the same point in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75) Lady Hale said:

 

[27] [Court rules cannot] change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210

 

The power to make FPR 2010 is delegated to the FPRC by Courts Act 2003 ss 75 and 76. There is no power, vested in FPRC by ss 75 or 76, to rewrite the common law in relation to open justice. It is likely that, if challenged, r 27.10 would be found to be ultra vires the rule-makers (ie outside the powers given to them by Parliament). Perhaps that is for another day….

 

Open justice and related issues

 

For the present it is necessary to recall that open justice principles apply also to other aspect of court proceedings; and to accept, for now, that FPR 2010 rule-makers have the power to alter the common law. The hearing may be ‘in private’; but what of other open justice related issues (Guardian v Westminster was about a press request for documents after a magistrates’ court extradition proceedings hearing). Such open justice related issues include:

 

• Release of documents prior to a hearing to help anyone one (eg a journalist under FPR 2010 r 27.11(2)(f)) to understand what is happening;
• Release of documents after a hearing (Cape Intermediate v Dring);
• Publication of a judgment anonymised or not
• Reporting restrictions orders; and – especially – for how long (and for how long are parties to be embargoed from releasing, or the press from publishing, material in the case?
• Anonymisation or parties, and of witnesses (eg witnesses, especially experts, social workers, accountants, medics and valuers)

 

In law, all of these topics start from open justice principles; but none are related directly to whether or not a hearing takes place in private. FPR 2010 r 27.10 does not necessarily apply.

 

Hearing in ‘private’

 

Although each of Administration of Justice Act 1960 (AJA 1960) s 12(1), FPR 2010 r 27.10 and CPR 1998 r 39.2(3) speak of hearing ‘in private’, only r 27.10 tells us that ‘proceedings held “in private”’ means the public have no right to be present. Case law tells us a lot more. This was explained in ‘Private hearing, in secret and in chambers’. So what then are the consequences of a hearing being held ‘in private’?

 

 

2        AREAS FOR REFORM

 

Areas for immediate review or reform

 

The areas referred to above for reform can be boiled down to:

 

• Anonymisation of parties and of witnesses.
• Release of documents prior to a hearing, with permission of the court.
• Release of documents after a hearing to non-parties (Cape Intermediate v Dring), with permission of the court.
• Publication or ‘use’ of disclosed documents.
• Publication of a judgment anonymised or not
• Reporting and other restriction orders: for how long?

 

This note will touch on the first to the fourth of these.

 

(1)        Anonymisation

 

I know work is being done in other parts of the common law jurisdictions on this. I will only mention it here because, in a case which is to be dealt with privately, anonymisation on terms directed by the court, or agreed by the parties, will be important early on. Any documents – such as skeleton arguments, statements (without enclosures) etc – released to non-parties (eg to the press; under (2) in the above list) – can be suitably anonymised from an early stage in proceedings.

 

By the way, calling parties first, second etc ‘respondent’ does not anonymise them: it just confuses the reader, especially when the case may be entitled Re x. And then in the Court of Appeal the parties may all be something different. Please give the parties names, or – if anonymised – false names or letters. (One case I was involved in recently the judge just took all the initials and moved them one place in the alphabet: I am not sure that was much by way of anonymisation.)

 

(2)        Release of material prior to hearing

 

Because a hearing is in private does not mean material cannot be release from, or in relation, to it. FPR 2010 r 29.12 says:

 

29.12 Access to and inspection of documents retained in court

(1)  Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission.

 

In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J said – obiter (ie it was not part of his decision, and is not therefore law) – that

 

[13] … the press are not allowed any access to documents whatsoever – see FPR 2010, 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. Further still, PD 27B paras 2.4 and 5.2(b) confirm the ‘unaffected’ continuance of the existing reporting restrictions for such proceedings held in private….

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

 

This comment is open to three main criticisms:

 

• Parliament does not ‘pass’ rules. They do not have the weight of statute. They are made by delegated authority under Courts Act 2003 (as explained above) and by the negative resolution procedure: Courts Act 2003 s 79(6))

 

• It is impossible to see that r 29.12(1) says what Mostyn J says. It specifically says that with permission ‘any person’ (ie including a non-party such as the press) with permission can inspect documents and can take copies.

 

• FPR 2010 r 29.12(1) must be looked at alongside CPR 1998 r 5.4C.

 

The nearest equivalent in civil proceedings to r 29.12(1) is CPR 1998 r 5.4C(1) and (2) (though this rule deals with non-party access, specifically, which would – of course – include the press):

 

Supply of documents to a non-party from court records

(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of [a statement of case etc; any judgment etc].

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.

 

The working of this rule is dealt with in Cape Intermediate v Dring (see the next part of this note); but it is important to mention it here because its reach goes to all court proceedings (civil (including family) and criminal); and in principal it can apply to pre- and post-hearing documents as appropriate.

 

Guardian v Westminster concerned an application after the hearing for documents; but there was a helpful discussion by Toulson LJ, especially at [33]-[35], of the reason for pre-hearing disclosure. He explained the need for this to bring modern practice of courts – where a lot of reading is being done alone by judges – into line with the need for an open system of justice.

 

(3)        Release of material after a hearing; access by non-parties to court material

 

In Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) the issues were summarised by Lady Hale (who gave the judgment of the Supreme Court: Lord Briggs, Lady Arden and Lords Kitchen and Sales) at [15] as:

 

• What is the extent of Civil Procedure Rules 1998 (CPR 1998) r 5.4C(2) (supply of documents to a non-party from court records?
• Is access to court documents governed solely by the CPR 1998, save in exceptional circumstances, as the appellant (Cape Intermediate) argues? Or does the court have an inherent power to order access separate from the rules?
• If there is such a power, how far does it extend and how should it be exercised?

 

The case applies to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). The decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster.

 

[41] The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.

 

How does the case impact on the family courts? It raises a number of important questions, which these articles must address. First, to what extent does Cape Intermediate v Dring apply to family proceedings at all? The case summarises the common law on open justice. To what extent, if at all, can the common law be overlaid by a rule?

 

The case gave the court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to non-parties’. It continues an important line of authority going back to the minority speech of Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 (both cited in the Supreme Court and note in [33]-[35] of Guardian v Westminster).

 

The court held that a court could give permission for release to a non-party the following (see [9] to [11]):

 

• The routine documents summarised in CPR5A1 para 4.2 (above); but not including, necessarily, trial bundles.

 

• In its inherent jurisdiction the court generally, has jurisdiction to permit non-parties to obtain certain documents (see eg GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 994-5).

 

The main rationale for application of the inherent jurisdiction is to accord with the open justice principle and to enable anyone permitted to attend court to make sense of proceedings (see eg Guardian v Westminster). The following documents might be released:

 

• skeleton arguments and other written submissions (Cape Intermediate in the Court of Appeal at [69]; GIO (above));
• documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
• witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports (Cape Intermediate at [96]), but not their exhibits (Cape Intermediate at [100]); and
• any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at [110]).

 

If documents are suitable anonymised and to accord with principles of open justice – at least for those permitted into court: FPR 2010 r 27.11(2) – the question must be: why cannot any of these documents be released to non-parties (subject to any issue which arises under AJA 1960 s 12 and ‘the implied undertaking’)?

 

(4)        Incidence of the ‘implied undertaking’

 

Alongside release of documents to non-parties must also come the question of the ‘implied undertaking’ as to release of documents which a party has been compelled to disclose (eg by the requirement for full and frank disclosure in financial relief proceedings).

 

The undertaking has been codified in CPR 1998 r 31.22(1)-(3) as ‘subsequent use of disclosed documents’ as follows

 

Subsequent use of disclosed documents…

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

(3) An application for such an order may be made –

(a) by a party; or

(b) by any person to whom the document belongs.

 

It can reasonably be assumed that this rule in this form applies to family proceedings (see discussion in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565); but then the question is, was the hearing ‘in public’. If not and the hearing was ‘in private’ which of the definitions above applies?

 

CPR 1998 r 5.4C deals with application by a non-party. Rule 31.22(1)(a) deals with the extent to which a party can publish documents. The consequence of the rule in Clibbery v Allan – which has not been altered by the subsequent making of FPR 2010 – is that a party to proceedings can ‘use’ (ie publish, as did Ms Clibbery) a document disclosed in proceedings heard ‘in private’ where it has been read by the court; or otherwise with permission or agreement of her opponent (neither of which applied).

 

All of this is most emphatically subject to the statutory restraints of AJA 1960 s 12(1); but for most family proceedings purposes, only s 12(1)(a) (ie children proceedings) applies for open court hearings.

 

The party who wishes to publish following a hearing – say to pass to the press details of her husband’s financial dealings after the hearing – must decide whether the judge has ‘read’ the documents concerned. If so, the fact that a hearing was ‘in private’ – at least on the case law of 1999-2004 – suggests there is no breach of the ‘implied undertaking’. If there is the remedy is private, not the criminal contempt implied by AJA 1960 s 12 (Attorney General v Leveller Magazine Ltd [1979] AC 440).

 

Proposals for reform will follow in a later article.

Private hearing, in secret and in chambers

What is ‘private’: a need for clarity in law

 

Both sets of relatively recent court rules – Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – use the term ‘private’ of court hearings, but without any attempt in either to define ‘private’. More seriously the earlier Administration of Justice Act 1960 s 12(1) uses ‘private’ without any attempt in the Act to define it. I say ‘more seriously’ because s 12(1), in its inscrutable way, suggests that publication of information from certain types of proceedings ‘in private’ may be a ‘contempt of court’. A person found to be in contempt may be sent to prison. But why should anyone be sent to prison if they don’t know that what they have done is wrong because ‘private’ is not defined?

 

Lord Bingham’s first rule of law, in his David Williams memorial lecture in 2006 concerned clarity in law:

 

‘First, 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.’

 

This accessibility is most obviously associated with criminal proceedings, but it applies generally to all law. In the case of contempt and imprisonment for a possible breach of court privacy, it assuredly applies. If you don’t know that a court is truly sitting ‘in private’, or – worse still – it perhaps should not be sitting in private, then can you still be sent to prison for alleged breach of the law. If you are threatened with prison the condition for that – what you may publish from a ‘private hearing’ – depends on its defining condition, that the court is ‘in private’ and what that means, in law.

 

Each of the statute and sets of rules have interpretation or definition sections; yet none of them say what is meant by ‘private’, save that FPR 2010 r 27.10(2) says what it is not: namely ‘proceedings at which the general public have no right to be present’. I will therefore set out the relevant provisions and then set out what the courts have said to explain ‘private’.

 

‘In private’: statute and rules

 

AJA 1960 s 12(1) under the heading: ‘Publication of information relating to proceedings in private’ says:

 

‘(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b)where the proceedings are brought under the Mental Capacity Act 2005 [etc];

(c)where the court sits in private for reasons of national security…;

(d)where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e)where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.’

 

Nothing is said here about the main variety of family proceedings, save children proceedings. Such proceedings – especially financial proceedings – may be caught by another common law rule, namely that a party may not publish documents disclosed under compulsion (eg ‘full and frank disclosure’)). Subject to that publication of documents and other material from family proceedings other than children proceedings appears not to be caught by s 12(1), even though a hearing was dealt with ‘in private’. (I add, though it is of little direct relevance here, that Children Act 1989 (CA 1989) s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ a  child involved in proceedings; but the prohibition comes to an end once the proceedings have been concluded (Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11; Re J (A Child) (contra mundum injunction) [2014] 1 FLR 523, [2014] 2 FCR 284 Sir James Munby P).)

 

CPR 1998 r 39.2(1) requires that all civil proceedings be in public, save as set out in r 39.2(3), the main part of which says:

 

‘(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

(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;..’

 

And finally, FPR 2010 r 27.10(1) says:

 

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.

 

‘In private’ and the common law

 

In the absence of any statutory definition of ‘in private’, in secret and so on, what does the common law say, what do the judges say. The subject of what is meant by private (or in chambers) in the period since the drafting and introduction of CPR 1998, really comes alive with Forbes v Smith [1998] 1 All ER 973, [1998] 1 FLR 835, Jacob J (21 December 1997) where he gave permission to publish a judgment given in chambers in bankruptcy proceedings. In so doing he said (at FLR 836):

 

‘The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets’ case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents.’

 

Less than two months later, at a time when the Civil Procedure Act 1997 had been on the statute book for a year, and drafting of what became Civil Procedure Rules 1998 was well under way, the Court of Appeal gave judgment in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (12 February 1998). The case concerned claims against a tobacco company, on behalf of a variety of claimants. They said their cancer gave them a cause of action against the company.

 

Public access to chambers hearings

 

The court reviewed the ‘exceptional’ circumstances for hearings in camera recognised in Scott and emphasised the distinction between ‘chambers’ on the one hand and ‘secret’ and or ‘private’ hearings on the other (at 1070). The judgment of the court was given by Lord Woolf MR who was then chairing the committee which was preparing CPR 1998:

 

‘A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in [Scott] or the court sits in chambers and the case falls in the categories specified in [AJA 1960 s 12(1)] (which include issues involving children, national security, secret processes and the like).’

 

The difficulty the court confronted (as they put it at 1071) was that the subject of what was meant by ‘private’, in chambers etc was ‘virtually free from authority’. There was nothing in case law to guide them. They, the judges, must therefore frame the law. They did so in the light of their assertion of clear principle:

 

‘However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted.

 

It is clearly stated that as far as possible public should have access to chambers hearings, and to what happened at hearings – that is publicity including of judgment. This will always be subject to the exceptions in AJA 1960 s 12(1). And this statement of principle from the Court of Appeal was re-enforced by a differently constituted court in Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, CA (judgment on 30 September 1999)

 

[24] We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in [Hodgson v Imperial], in which he said (at 1071), that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.

 

Clibbery v Allan

 

So far as there was then, or is now, any distinction between the two types of proceedings, the case law so far relates to civil proceedings. Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 saw the Court of Appeal looking at whether documents from a family hearing ‘in private’ could, even so, be passed on for publication to the press. They held that such publication was permissible. Dame Elizabeth Butler-Sloss P considered Hodgson and provided the following definition:

 

‘[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 summarised a variety of circumstances where in family proceedings – then governed still by Rules of the Supreme Court 1965 and County Court Rules 1981 alongside Family Proceedings Rules 1991 – were conducted in chambers, sometimes because the rules said so, sometimes merely out of undefined habit or practice.

 

In Department of Economics, Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] EWCA Civ 314, [2005] QB 207 the Court of Appeal – Mance LJ – provided a synthesis of their earlier decisions in Hodgson and Clibbery v Allan. The case concerned whether a judgement in an arbitration should be published where, as a result of a mistake, a summary had been published by Lawtel. The judge said no: arbitration proceedings were generally in private. The Court of Appeal allowed publication of the summary, but said the judgment as a whole should remain private.

 

Mance LJ referred to what Dame Elizabeth had said, seconded by Keene LJ,

 

‘[26] Keene LJ agreed with Dame Elizabeth Butler-Sloss P and endorsed (at [120]–[121]), “the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified”, adding that “in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private”. He observed that the burden of showing that such an application falls within one of the exceptions to European Convention 1950 Article 6(1) “is likely to be particularly difficult to discharge where children are not involved”.’

 

Scott v Scott: no absolute rule of open court

 

There is no absolute rule as to when a case should be heard in private or in open court: R (Pelling) v Bow County Court [2000] EWHC 636 (Admin) QB Div Ct reminds us of that point. Subject to that and to the constrictions of s 12(1) anyone who wants to go into a private hearing or to publish a judgment from a chambers hearing is entitled to draw attention to the fact that the statute law and rules neither of them clearly say what is meant by ‘in private’.

 

The common law asserts – or appears to do so – that there remains a distinction between open court hearings, hearings ‘in private’ and hearings ‘in secret’. At the very least, in the absence of any court order to the contrary (the Moscow case was an arbitration, and there was a contrary order) judgements from a hearing ‘in private’ can be published.

 

Such as it is, attendance at private hearings and publication of judgments from chambers hearings (subject to exclusion by AJA 1960 s 12(1) and CA 1989 s 97) is what the case law seems to say; and in the 20 years since Hodgson, its comment that the law on this subject was ‘virtually free from authority’, still applies. Authority on what is ‘private’ remains sparse.

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

(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

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).

Video hearings and family courts

A video hearing scheme

 

A number of strands of family law and modern court practice coalesce in the civil proceedings default judgment video-link set aside scheme (Civil Procedure Rules 1998 Practice Direction 51V – the video hearings pilot scheme .

 

Family lawyers: please do not stop reading…. There may be important points which emerge from this scheme which can affect witnesses and parties in family courts. Video hearings can be an important subject in a variety of family proceedings. Four examples amongst many follow:

 

• For those concerned with transparency in family courts video hearings, if both (or more) parties are on video, then attendances at court (eg of legal bloggers and press) are like to be impossible; unless special arrangements are made as PD51V
• Especially in domestic abuse cases video link evidence may be critical for the allegedly abused party.
• For those – witnesses and parties – who cannot afford to travel to court, or are disabled or elderly, video link hearings will be essential. I am dealing with a pro bono unit case now where a wife of limited means is threatened with loss of her home because a Family Court district judge made an order, in her absence, that she must sell her it (yes, really). The judge made no enquiry as to how she could travel 100 miles (and more) to court. (Yes she has filed her own notice of appeal; but she remains intensely worried.)
• In another case of mine a 13 year old was interviewed by the judge. This was done by judge alone, with only the child’s solicitor present: nothing unusual in that. If the child was OK with it, is there any reason why the parents could not have seen the meeting on video? Any appropriate comment could then be made by parents in the course of the hearing of either party’s applications.

 

In passing it may be noted: in a recent First-tier Tribunal (child support) case I act in, a tribunal judge automatically offered a mother who was distant from the hearing tribunal, that the hearing should be adjourned so she could attend by video-link – a solution which did not seem to occur to the district judge in the Family Court sitting at Bedford.

 

What is the scheme?

 

Writing in New Law Journal on 29 November 2018 my colleague Stephen Gold said of the scheme:

 

‘The plan for Gogglebox civil justice has not been derailed even by Brexit. Proof comes in the form of a 12-month video hearing pilot scheme which starts today under PD51V. It will operate out of Birmingham and Manchester only and be confined to applications to set aside default judgments where the parties have consented to the application proceeding by way of a video hearing. Make up will be supplied free of charge by HMCTS to the judge and parties but not legal representatives who are regarded as being overpaid. Only joking about the make-up. The rest is deadly serious.’

 

The pilot scheme is limited, for the present to setting aside judgments made in default judgment proceedings (CPR 1998 Pt 12: not a very wide span of proceedings). It is the conduct in court of any proceedings which is important.

 

Paras 1.3 and 1.4 put statutory flesh on Stephen Gold’s commentary. It sets out the important detail of how the scheme is intended to operate:

 

1.3 All parties or their legal representatives will attend the hearing of the application, using the video-link, from suitable IT equipment and will see and hear, and will be seen and heard by, each other and the judge determining the application.

1.4 Hearings will be held in public. Members of the public may access a hearing by attending the court in person and will see and hear the judge and the parties or their legal representatives on a screen in the court room.

 

So yes, the court provides what amounts to an open court hearing….

 

Video schemes: private family hearings and open justice

 

My worry is that HMCTS will be quick to say, if these schemes are extended to family courts: ah yes, but almost all family hearings are in private (FPR 2010 r 27.10). There is no need for the taxpayer to go to the expense sent out in para 1.4. True; save that legal bloggers (and occasional others) and certain journalists are entitled to be in court (FPR 2010 r 27.11(2). That right will go – or will be diluted – if video hearings are set up without the additional rights to open court hearing in para 1.4.

 

Video link hearings and taking of evidence are here to stay. Rightly (in my view: see eg my client who at present has lost her house) video assistance to courts will increase. As video assistance increases: do those of us concerned with family courts transparency need to keep a weather eye on developments elsewhere, eg in relation to PD51V?