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

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A draft bill: domestic abuse hearings in 2019

 

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

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

 

Hybrid procedural court powers

 

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

 

27 Domestic abuse protection orders otherwise than on application

Family proceedings

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

Criminal proceedings

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

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

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

Civil proceedings

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Open justice: a common law principle

 

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

 

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

 

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

 

General rule – hearing to be in public

(3) A hearing, or any part of it, may be in private if –

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

(b) it involves matters relating to national security;

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

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

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

(f) [not relevant]; or

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

 

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

 

A court rule cannot create law

 

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

 

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

 

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

 

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

 

Clibbery v Allan: open court and domestic abuse in 2019

 

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

 

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

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

 

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

 

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

 

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

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Video hearings and family courts

20160419_174504A 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?