Family proceedings at a time of coronavirus: Part 2

Fair and remote hearings

 

Two subjects loom in these coronavirus times; practice directions and guidance; and how to manage fair (public or private) hearings. A debate about online court hearings can follow later. I wrote a first post on practice direction here and ended by recalling that formal practice directions can be made only by the President of the Family Division in consultation with the Lord Chief Justice (Constitutional Reform Act 2005). Local practice guidance may be well-meant; but on what statutory or other authority can it operate or be enforceable?

 

For example how does a party respond to HHJ Dancey’s minatory direction (for Dorset: as is the picture above) that ‘it is incumbent on all parties to try to resolve cases…; and that ‘parties may be asked to explain what steps they have taken to try to resolve their case’; or HHJ Wildblood’s direction in relation to ‘private law’ (ie Children Act 1989 Part 2) proceedings as to who – on his direction – ‘must’ prepare court bundles and that ‘There must be a directions hearing before the judge of trial at least 48 hours prior to the substantive hearing at which, among other things,  directions will be given as to the arrangements for the hearing’.

 

One of the golden rules of rule-making, or indeed of making a court order, is not to make the rule or order if it cannot be enforced. What are the rules for these directions if they are not complied with? For example the duties imposed by HHJ Wildblood as to who is to take responsibility – namely HMCTS staff – where both parties are unrepresented (para 6(iii):

 

Where neither party is represented, the court office must liaise with the judge of trial at least 72 working hours before the hearing and the judge must give directions for how the hearing is to be conducted. In default of specific direction from the judge the court must arrange for such hearings to be conducted by telephone.

 

Will the court staff which are intended to comply with these directions, do as they are told; and if not, what do I as an unrepresented parent, do about it? Who at the court is personally responsible; and what is their email address and telephone number?

 

‘A fair trial’

 

Courts, as a public authorities, must not act in a way ‘which is incompatible with a European Convention right’ (Human Rights Act 1998 s 6(1)). The right in play here is Art 6 which says:

 

Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The main essentials of a fair trial at common law are procedure and how the judge determines the issues before the court. Each side must have notice of any steps in the proceedings and must have a fair chance to adduce all relevant evidence before the court. The crucial aspect of a fair trial is that the judge (or magistrates) impartially hears both sides (audi alterem partem).

 

If justice in times of coronavirus achieves all that distantly, then the first ‘fair trial’ part of Art 6 is achieved. Judgement can be given. The question of ‘publicly’ will then be the challenge for court administrators. Hearing in ‘a reasonable time’ – an often forgotten component – can be worked towards.

 

Administration at times of coronavirus: a team and a leader

 

So with technological ingenuity, openness can be achieved; but what about administering all this. Here we come back to all the local practice directions.

 

Imagine first that you are running a difficult case or trying to win a team sport (rugby, football etc). In each case it is important to have one person making all the strategic decisions: leading counsel, a senior solicitor, the team captain. Some actions, even minor decision making, may be delegated to, for example, lesser lawyers or paralegals in the difficult case. Their work is tactical on sections of the work in hand (preparing statements from witnesses, putting together a bundle and so on). Strategy remains with the head lawyer in the case of the heavy litigation.

 

So too it is with running a series of family courts. You cannot have individuals in separate courts putting up procedural rules. That is a matter of strategy for the leading person. Still less can they be putting out guidance without clear legal authority (as mentioned here). That is a matter for compliance with the law and calls for what Parliament permits (Constitutional Reform Act 2005).

 

It is also important to reflect on what judges are for. They are there to determine claims or applications before the court. They are not there to administer the courts in which they sit. That is, or should be, for court administrators. It is a basic question of separation of powers. A judge is judiciary. That judge’s power is separate from the executive (HM Courts and Tribunal Service: ie court administration). And it is separate again from legislature (in this case the making of rules and any necessary practice directions/guidance). In an individual case the judge is responsible for case management; but for generalities it should be for the ‘legislators’ (within their own powers: Courts Act 2003 s 75) to make rules and practice direction.

 

President of the Family Division

 

The President of the Family Division fits uncomfortably into all this. Just as did the Lord Chancellor before the Constitutional Reform Act 2005 the President spans three powers: he is a judge; he is a legislator (see practice directions below); and he is part of the family courts administration. The powers need separation; but needs must for coronavirus times. One President cannot long-term do all that is required by his present job description.

 

For now, the President is the strategic head of family courts (per the illustration above). He, and only he (with the Lord Chief Justice), has the power to issue practice directions (as explained in Part 1). That, in a sense, is a legislative and an administrative role; save that once practice directions are made it is for HMCTS and us and parties to litigation to operate them.

 

Lucy Reed touched on the practice direction point in a recent blog of the recent guidance issued by the President of the Family Division on remote and face-t-face hearings Guidance issued by the President of the Family Division: ‘There is other guidance in different jurisdictions and lots of (inconsistent) local guidance too), but it’s just guidance, and it makes clear that decisions will be made on a case by case basis i.e. it anticipates that some face to face hearings may still take place.’

 

The issue remains: if practice directions – especially local practice directions – do not comply with the law, they are not lawful. Whoever made the practice direction – judge or anyone else – is acting as public authority decision-maker (ie a civil servant). They – judge or other administrator – is subject to the usual administrative law rules. This was the point made by Lord Wilson in NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962 (30 October 2019) referred to in Part 1. It is the law which must be followed (as set out in the common law, in Family Procedure Rules 2010 and in properly made practice directions). The law always trumps a practice direction of practice guidance.

 

David Burrows

27 March 2020

 

Local family courts guidance in time of Covid-19: Part 1

‘Different rules, different areas’

 

What follows may seem ungrateful at a time when people – especially judges and hard-pressed court administrators – are doing what they can to respond to the coronavirus pandemic. Even so, all of us are entitled to ask, if the rule of law is to be preserved through a crisis – when, above all times, it must be preserved, surely? – what powers do individual judges have to declare unilateral independence (UDI) and issue their own local rules? It sounds curmudgeonly to ask; but is it fair to wonder how may of these local guidances are lawful certainly where they seek to change the law or procedure?

 

In the last 24 hours or so I have read:

 

• COVID 19: National Guidance for the Family Court 19th March 2020 guidance from Sir Andrew McFarlane P – ;
• CIVIL JUSTICE IN ENGLAND and WALES PROTOCOL REGARDING REMOTE HEARINGS 20 March 2020 ;
• The Remote Access Family Court – Mr Justice MacDonald, Version 1, 23 March 2020 (This document will be subject to regular amendment and re-issue); and
• Guidance from HHJ Dancey for courts in Dorset of 21 March 2020.

 

And now a short document from HHJ Wildblood in Bristol has just arrived…

 

The first of the above list is an official guidance from an impeccable source, Sir Andrew McFarlane P. The second short document for some reason leaves out the poor family courts. The third is truly impressive. It seeks to regulate nothing, but brims over with practical ideas as to how remote hearings – mostly in family courts – can be taken forward. (It does seem crazy that, though it is the same common law and mostly the same rules, true apartheid operates between family and other civil courts. As Sir James Munby P (the Munby LJ) once remarked acidly, it is one High Court and one common law….)

 

Powers to change procedural rules

 

I am troubled as to what powers has a circuit judge, like HHJ Dancey – enormously well-meaning though I am sure he is – to seek to regulate the courts in his county, or to try to change the law (as I think he does). He is not a court administrator, he is a judge. One is part of the executive, the other of the judiciary; and the two should be kept more separate; and clarity on this must be kept predominant in times such as these. I will come back to that.

 

What power does anyone beyond the President of the Family Division (with Lord Chief Justice) and Family Procedure Rules Committee have to do more than get on with their job according to the rules and any practice directions/guidance from the President or procedural law already set down in rules? And getting on with a judge’s job means judging. It is for court administrators and rule-makers backed – as need be – by the President, to administer the system.

 

In an individual case – mostly now to be heard remotely – a judge must determine individual, case based, aspects of case management and the outcome of the issues for trial. Otherwise we go back to how it was pre-1999 (ie before the CPR 1998) when individual courts could have their own rules; where you might have to find out from local courts how you should proceed with a case you had there. It was the Wild West; and now it seems, at the worst of times for it too happen, local judges may be reverting to that.

 

‘Different provision for different cases or different areas…’

 

When Civil Procedure Act 1997 came in Parliament deliberately included a provision, in Sch 1 to the Act, which said rule-makers could make different provision for different courts.

 

Different provision for different cases etc

7 The power to make Civil Procedure Rules includes power to make different provision for different cases or different areas, including different provision—

(a)for a specific court or specific division of a court, or

(b)for specific proceedings, or a specific jurisdiction,

specified in the rules.

 

Exactly the same provision appears in Courts Act 2003 s 75(4) for courts covered by Family Procedure Rules 2010 (FPR 2010). As can be seen, it is the rule-makers who make different provision for different areas or different types of case, not individual judges. In that context rule-making includes practice directions issued by the President of the Family Division, as Sir Andrew McFarlane P has done with his COVID 19: National Guidance (above). The COVID 19 guidance records that it is issued (as is required by Constitutional Reform Act 2005) ‘with the approval of the Lord Chief Justice and the Senior Presiding Judge)’; and goes on ‘the guidance is intended to be followed with immediate effect by all levels of the Family Court and in the High Court Family Division’.

 

Practice direction (and guidance): ‘no legislative force’

 

In Re NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962 (30 October 2019) Lord Wilson said this of practice directions and their effectiveness in a case where he was considering the extent to which a family court had any inherent jurisdiction:

 

[38] The Family Procedure Rules 2010 [(FPR 2010)] are made pursuant to section 75(1) of the 2003 Act and so have legislative force. But practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] 1 WLR 2657 (at [48]): “a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

 

Any litigant is entitled to query any practice direction which appears not to be in accordance with the law. It times of crisis this right is surely as important as in any other? However, if judges below the President exercise constraint and recognise their procedural law-making abilities, then such querying or challenge should be unnecessary.

 

Law-making must hold together

 

The hierarchy of delegated legislation descends from statute at the top of the tree. In the case of Family Procedure Rules 2010 the power to make them is delegated to a rules committee by Courts Act 2003 s 75 (as mentioned by Lord Wilson). A number of cases before and after U v Liverpool have attested to the limited nature of practice directions (see eg Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602; Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274).

 

Practice directions are to be made only by the President of the Family Division in consultation with the Lord Chief Justice (Constitutional Reform Act 2005). Below that we have what the late Sir William Wade described, in Administrative Law (2014) Wade & Forsyth, as the jungle of sub-delegated legislation. Below that we are now seeing ‘local practice guidance’. But does this not risk destruction of the rule of law in the courts where this happens, just at a time when it is most important that the rule of law holds together?

 

It may be well-meant; but on what statutory or other authority does any local practice guidance operate? This will be considered in the next post by reference to specific guidance.

Practice directions and President’s guidance

Creating ‘law’ by practice direction and guidance

 

In ‘“Guidance” as law’ , for ICLR, I considered the status of judicially-issued ‘practice guidance’ as a form of law-making. Last month saw two instances of what practice guidance and practice directions mean in the hierarchy of what is authoritative law (ie the common law (ie judge-made law) and statutory law). These examples maintain my criticism of practice directions and practice guidance – especially practice guidance – as a means of creating forms of law.

 

First ‘hierarchy’: I shall assume in what follows that primary law consists of (1) the common law, which is created by High Court (and higher court) judges and can only be altered by (a) statute law or (b) a decision of an appeal court (or in the case of a Supreme Court decision, by a later Supreme Court decision); (2) statute law (ie Acts of Parliament); and (3) secondary legislation, delegated to a minister or other statutory body by a statute (an example of this will be seen shortly in delegation of rule-making to Family Procedure Rules Committee).

 

There are other forms of quasi legislation: described by Administrative Law (2014) Wade & Forsyth (11th Ed) at p 732, as ‘a jungle of quasi-legislation’: practice directions, practice guidance, protocols and so on. This article deals with examples from this ‘jungle’. And always it must be recalled that regularly – as in the NY case considered below – the Supreme Court over the past four years has queried the vires and correctness of certain practice directions (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228, [2015] 1 FLR 972; Sharland v Sharland [2015] UKSC 60, [2015] 2 FLR 1367).

 

Practice directions consistent with law: NY and the Supreme Court

 

Practice guidance, the quasi-legislative form adopted so often by Sir James Munby as Family Division President, is considered later in this article. Neither practice guidance nor practice directions can override existing primary law where they are shown to be wrong (see U (A Child) v Liverpool CC sub nom KU (A Child) v Liverpool CC [2005] EWCA Civ 475, [2005] 1 WLR 2657 (below)). A practice direction can only regulate the way the law proceeds; and if it cannot be supported (ie explained by) by primary law it is likely to be incorrect.

 

This proposition can be illustrated by NY (A Child) [2019] UKSC 49 (30 October 2019), a mother’s successful appeal against a return order of the parties’ nearly three year old child to Israel. The judgement was of Lord Wilson (with whom Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agreed). The mother’s argument had drawn attention to a practice direction in Family Procedure Rules 2010 (FPR 2010) PD12D.

 

PD12D para 1.2 emphasises ‘the width of the inherent jurisdiction’, said Lord Wilson, and includes:

 

The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common – … (e)       orders for the return of children to and from another state.

 

The mother, said Lord Wilson (at [36]), focusses on PD12D para 1.1 which says:

 

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989. (Emphasis supplied)

 

Lord Wilson considered the force of practice directions. The rules themselves (ie FPR 2010) are made pursuant to Courts Act 2003 s 75(1) and so have legislative force. By contrast, said Lord Wilson:

 

… Practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, at para 48: “… a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

 

So was ‘the categorical instruction in [PD12D para 1.1] wrong?’ To answer this Lord Wilson reflected on the pre-Children Act procedures for using wardship to bring a child into care, and contrasted this with the ‘one of the major achievements of the 1989 Act was to streamline the procedure for ordering a child to be placed in the care of a local authority’ and the inhibition against this in CA 1989 s 100(2) (inherent jurisdiction not to be used to place a child in care). His view of the significance of this (at [40]) was that Parliament ‘by contrast [with s 100], nowhere sought to preclude exercise of the inherent jurisdiction so as to make orders equivalent to those for which sections 8 and 10 of it provide, including specific issue orders’.

 

There was no statutory provision ‘which the instruction in PD12D para 1.1 could be said to reflect’; so the Supreme Court should go on to ‘turn to consider case law’ (at [41]). None could be said to support the practice direction. Lord Wilson therefore concluded that para 1.1 ‘goes too far’ and was too prescriptive. An applicant was entitled to apply, in appropriate cases, under CA 1989 Pt 2 (for a specific issue order) or under the inherent jurisdiction:

 

[44] … There is no law which precludes the commencement of an application under the inherent jurisdiction unless the issue ‘cannot’ be resolved under the 1989 Act. Some applications, such as for a summary order for the return of a child to a foreign state, can be commenced in the High Court as an application for the exercise of the inherent jurisdiction. But then, if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order… will need to be addressed….

 

‘President’s guidance’

 

The practice guidance format has been taken up by the new Family Division President, Sir Andrew McFarlane P. His recent ‘President’s guidance as to reporting in the family courts’ dated 3 October 2019 had a five month gestation period, but still emerges in the undemocratic form of ‘President’s guidance’. With the greatest respect to Sir Andrew, it contains – it seems to me – a number of errors of law (for a commentary see ‘Guidance to “reporters” on varying reporting restrictions orders’ : a summary of that commentary follows).

 

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). It 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 at children proceedings. Its aim 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).

 

A procedure for release or varying reporting restrictions orders

 

The guidance then goes on to tell the reporter – a journalist or ‘legal blogger’ – what should formally be done to vary or release a RRO. It tells journalists what they may get away with in terms of application to the court; and continues with guidance given by Sir Andrew as to how, informally, to apply for variation. Judges, he says, should be ‘astute to assist reporters’ 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. At the start of a hearing attended by a reporter the judge should enquire if a RRO variation application is to be made; and, if there is none at that stage, invite ‘the reporter’ to alert the court if the situation changes.

 

This passage indicates the weakness of the ‘guidance’. Where does the reporter stand if the judge will not here him or her, or fails to follow the guidance? How formally, and to whom, can the reporter apply (eg by FPR 2010 Pt 18 application in the proceedings in question). Even a practice direction put out by Family Procedure Rules Committee (FPRC) would have been stronger – and perhaps clearer – than this.

 

Better still, surely, an amendment to the rules setting out procedure on this important point? None of this has the force of law; and it appears to have been done in this way to avoid the democratic control and assistance of FPRC.

 

Costs and President’s guidance

 

This guidance applies to all forms of family proceedings (not just to children proceedings). Sir Andrew’s guidance on costs is therefore striking:

 

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’ at all. I do not know what any order for costs was, but I doubt there was a ‘standard’ approach.

 

Orders for costs are very rare in children proceedings, as between private parties (eg parents) or if a local authority applies for a care order. But what ‘standard’ rules apply for media representatives and their employers in the generality of family proceedings; or, indeed, in children proceedings? 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)). Costs are generally paid by the unsuccessful party (ie the ‘reporter’ if a reporting restrictions order is not varied, and the point is argued in court). ‘President’s guidance’ is neither rule nor statute. It can bind no party nor any judge.

 

Given that the applicant for the variation is generally a commercial body – not a parent or local authority caring for children – it seems likely, save where a variation is agreed, that a issues of costs will arise in contested RRO cases, especially in non-children family proceedings.

 

Open justice and regulation of reporting restrictions

 

In terms of procedure generally, and of costs in particular, the ‘reporter’ who is concerned with this guidance, is entitled to ask to what extent Sir Andrew’s ‘guidance’ does truly represent the law; and insofar as that reporter wishes to follow it, how does he or she urge in on the reluctant Family Division or Family Court judge, district judge or bench of magistrates.

 

It is important that family courts be properly and fairly opened up; but given that open justice is so pre-eminently a common law doctrine surely primary legislation should be made – at least by court rule – to establish how reporting restrictions are to be regulated.