Non-molestation and open court hearings

Is it the law that family court injunctions be heard in open court

 

In A child and the open justice principle I asked why the ‘child’ Charlie Pearce must – rightly, surely? – have his name published after his attempted murder trial (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); whilst, for example, the names be kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). I continued: why are parents whose children, at their hands, protected sometimes from serious harm are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who investigated for serious crimes but not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49.

 

Most startlingly, a man (say, ‘R’) can be brought anonymously (ie ‘in private’ or secretly) before the family courts for often dire forms of ‘molestation’ of their partner or children (Family Law Act 1996 (‘FLA 1996’) Pt 4); yet R, if prosecuted, will be dealt with in open court, on the same facts. Are the family courts, it might fairly be asked, trying to keep R’s behaviour secret? Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors? If R breaches any injunction, this will be dealt with in public – though not in family proceedings – as a criminal offence FLA 1996 s 42A.

 

Family proceedings: hearings ‘in private’

 

The rule in family proceedings since April 2011 is said to be that all proceedings covered by Family Procedure Rules 2010 (‘FPR 2010’), save where otherwise ordered or the rules say something else, are to be in ‘private’ (r 27.10(1)). ‘In private’ means that ‘the general public has no right to be present’ (r 27.10(2)).

 

Two important common law principles are in play here:

 

  • That all hearings must be in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; affirmed in eg European Convention 1950 Art 6.1), unless administration of justice or eg the welfare of children (as now summarised in Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(3)) requires confidential (or ‘private’?) hearing. What is meant by ‘private’ was explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565
  • The law cannot be changed by a rule save where statute permits: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said at [27]: That rules cannot ‘change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)[1965] Ch 1210’ (Senior Courts Act 1981 s 51(1) which permits rules to create substantive law on costs is an example of the exception).

 

The passage (italicised below) with which Lady Hale agreed was from Lord Denning MR where he said in Re Grosvenor Hotel, London (No 2) [1965] Ch 1210 at 1243 (of an attempt by rule-makers to change the law on public interest immunity):

 

The truth must be faced that, if this rule is within the powers of the Rule Committee to make, the hands of the judges are tied. They have no option but to act on [what] the Minister or of the permanent head of his department [says]. What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land. The law as to Crown privilege is not mere procedure or practice. It may perhaps be said to be a rule of evidence, but I would rank it higher. It is a principle of our constitutional law which is to be observed in the administration of justice, not only when a witness is called to give oral evidence, but also when a party is called upon to give discovery…. If this rule only states the existing law, there is no harm in it. But if it gives the government departments a veto on the production or inspection of documents — to a greater extent than that which is warranted by law — the rule is, in my opinion, bad.

 

Delegated legislation and Parliamentary will

 

At this point one judicial canard – with respect to, for example, MacDonald and Mostyn JJ – must be laid to rest. Both those judges have given judgments which suggest that Parliament have somehow ‘expressly provided’ for a change in the law from open court to private hearings for all family proceedings (save where for eg divorce hearings they are in open court) by the fact that the Lord Chancellor’s Family Procedure Rules Committee has changed the rules.

 

Such express provision of Parliament is not so. Like the majority of delegated legislation, rules are made under the negative resolution procedure (Courts Act 2003 s 79(6)). Only one set of such legislation has been queried by a member of either House in the last 37 years. Courts Act 2003 ss 75 and 76 make it clear that it is the rules committee which makes the rules, not – even under any constitutional law fiction – that Parliament has done the job.

 

Thus in HRH Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor [2017] EWHC 3095 (Fam), Macdonald J said of the rules on a number of occasions words to the effect of:

 

[87] … In this regard, I note again that Parliament has expressly provided in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation…

 

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J spoke of Parliament specifically maintaining proceedings in private (which seems to be in direct opposition to what Lord Denning MR said over 50 years ago: it is rule-makers not Parliament, who – in reality – make the rules):

 

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

[15] … It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog….

 

Parliament did not even contemplate the ‘implied undertaking’. It is not mentioned in FPR 2010 at all. It is mentioned in rule form in CPR 1998 r 31.22 (intended to reverse the former rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). Formally that rule does not apply in family proceedings. What precisely the ‘implied undertaking’, and whether Harman still applies, in family proceedings is muddled. Probably it is best described, for family proceedings, as in line with CPR 1998 r 31.22 (see discussion in Family Court Practice 2017 under FPR 2010 Pt 21).

 

Rule in Clibbery v Allan

 

Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565 concerned whether Ms Clibbery could pass documents which she received from the respondent in proceedings under FLA 1996 Pt (an unsuccessful occupation order application), so far as they were not covered by the ‘implied undertaking’ not to release documents required to be produced under compulsion of (then) ‘discovery’. In a frequently cited case and agreeing in the outcome with Munby J below (Clibbery v Allan [2001] 2 FLR 819) the Court of Appeal (Dame Elizabeth Butler-Sloss P with whom Thorpe LJ agreed) held that though the hearing was in ‘private’ documents could be released by Ms Clibbery to the press. Anonymity seems not to have been in issue.

 

Dame Elizabeth explained the term ‘private’ – as distinct from open court and ‘secret’ or ‘confidential’ – as follows:

 

[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 tri-partite division remains the common law position in family proceedings; and on the Grosvenor Hotel principle it cannot be changed by delegated legislation. It is not altered by such cases as Appleton v Gallagher and Luxembourg v Luxembourg since these do not apply in the case of Family Law Act 1996 Pt 4.

 

Family Law Act 1996 Part 4, anonymity and ‘private court’ hearings

 

Subject to the ‘implied undertaking’ (or CPR 1998 r 31.22) point, the law would seem to be as in Clibbery v Allan. That as the Court of Appeal had explained in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, ‘privacy’ means that, space permitting, the public are allowed into a court held in private (after all the words of r 27.10(2) do not prevent asking for permission: that is how it works with any situation where a person has no right, but can ask to come in, all the same).

 

Thus a frightened ex-partner or spouse can invite friends or family to come to court with her. They do not need special permission and the court can be asked to make room for them. Whether the press and others – eg to see how any successor to Prison and Courts Bill cl 47 works in practice – can come into court: that awaits another day, another discussion of this absurdly complex area of law. There seems to be no logic in the same facts being dealt with in ‘private’ (if not in secret) in a family court, but in open court in criminal proceedings; but logic does not rule family law when the open justice principle may apply.

 

And anonymity: surely that cannot truly be in question? The names of mother and Mr JM – especially in the Court of Appeal – should surely be public. To that extent, at least, family courts need not afford secrecy to those who molest or otherwise abuse their partners, children or other members of their family – unless publicity of their names might be jig-saw linked back to any children concerned.

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Secrecy and disproportionality in the family courts

Attempts to ‘conflict out’ a party to family proceedings

 

In ZS -v- FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017) Williams J allowed a rich (I assume) Russian to spend two days arguing whether or not his wife (who may of not be FS: see later) should be allowed to use Ray Tooth (RT) whom she had chosen to instruct. In the meantime the ‘representative’ (OE) of the husband (say, ZS) said he had been to see RT, who could not remember the meeting. The judge assumed this was an attempt by ZS to ‘conflict out’ (a new verb?) FS so that she could not use Tooth to act for her. ZS’s application was unsuccessful.

 

The judge found OE (why ever was his case kept anonymous) to be ‘blasé about … accuracy in matters evidential’ (as the judge put it at [68]). Others might have said OE was lying. The case was heard in ZS’s absence, though with ranks of lawyers and OE present and a witness for ZS.

 

Why does all this matter? There is a relatively well-developed jurisprudence in relation to conflicts of interests if a professional who owes a duty to one client, and then takes on another with a conflicting interest. Like the accountants in Bolkiah v KPMG [1998] UKHL 52, [1999] 2 AC 222, solicitors may not do it. In the field of matrimonial litigation the issue has arisen, for example, in Davies v Davies [2000] 1 FLR 39, CA (another case in which RT could not remember a client) and Re Z (Restraining Solicitors from Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132 Bodey J. The subject is well-aired. So too is that of legal professional privilege which is the other aspect of the case which looks at law, though in connection with mostly well-known cases.

 

It is what the case does not look at – but perhaps should have done? – is what this note considers: first, the question of proportionality; and, secondly, at release of information to help us ‘make sense’ of the case.

 

Overriding objective; and what may have been left undone in ZS v FS

 

Since the end of the 1990s there has been a real concern amongst civil lawyers to keep cases within bounds (ie ‘proportionality’); and this expresses itself in what were intended in Civil Procedure Rules 1998 Pts 1 and 3 to be tighter case management rules, incorporated 12 years later into Family Procedure Rules 2010 (FPR 2010) Pts 1 and 4.

 

This application – it was an interim hearing which I assume ran under FPR 2010 Pt 18 – lasted two days. It engaged a QC per party each with a junior (with solicitors sitting behind, and as witnesses). It resulted in a 72 paragraph judgement as well as, within that and in addition, a three page chronology. The court fee for an application like this (if any was charged) this is £155 (ie the payment to the Treasury for all that, plus ushers, court staff, heating lighting etc).

 

The application – which would normally be dealt with on paper (perhaps with short submissions) by a district judge – was ‘a hearing other than the final hearing’ (FPR 2010 r 22.7), so ‘the general rule is that evidence at [such] hearings… is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise’. There is nothing in Williams J’s judgment to say he had considered r 22.7, and what he had concluded from r 22.7 to make him decide upon a full hearing on evidence being called.

 

We do not know why the case was not dealt with summarily on the papers. Outside London, you would expect a case like this to be dealt with by a district judge on the papers; with maybe short submissions only.

 

Proportionality and expeditious disposal

 

And then the overriding objective and proportionality in FPR 2010 terms, surely, comes into it? FPR 2010 r 1.1 requires that cases be dealt with ‘justly’; and this surely includes the court administrators and judge giving thought to others – others more deserving, if not so rich? – who might want a High Court judge’s time. ‘Dealing with a case justly’ (FPR 2010 r 1.1(2):

 

(2) … includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;… and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

True it is that the judge says (at [32]) he found it very helpful to hear ‘the parties give oral evidence’ (though did this include the husband? – I think not); but surely it must have been possible to devise a summary basis for the application and for it to be heard in a fraction of the 2 days and by a district judge? This is what the ‘overriding objective’ and its appeal to proportionality would anticipate.

 

We send children whose parent says they are ‘at grave risk [of suffering] physical or psychological harm’ (Hague Convention Art 13(b)) back to their former homes by a summary (ie no oral evidence) process. Children are rarely heard. An application like that of ZS should surely be treated as less important than the future of a child? After all, the worst would be that his wife could not have RT as her lawyer. Excellent though he may be (had the wife lost on this application), there are others…

 

Banks of lawyers – family lawyers who would know the rules for family proceedings – were involved in this case. Did any of them draw to the judge’s attention to FPR 2010 rr 1.1, 18.7 or 22.7? If they did, the judge does not say so.

 

Hearing documents and a ‘skull painting’…

 

The other unwitting aspect of the case is that of ‘hearing documents’. This is a well-trodden path. This case only shows the increasing need for it, if judges are to be able to keep their judgements relatively economical in length.

 

‘Transparency’ it has been suggested from judges at the highest level (see eg Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338’ Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 and Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618) could – must, in the interests of openness – be increased by release of certain documents read by the judge outside the hearing. This would enable those who attend court or otherwise want to ‘make sense’ (Lord Scarman’s term) of proceedings (eg witness statements, skeleton arguments etc suitable anonymised).

 

The essential elements of ZS’s main application before the court (for a declaration of the validity of a Russian divorce) are said to have been ‘set out at B3’; and an unexplained ‘skull painting’ (referred to only once in the judgement ay [15]), are listed amongst a number of items which are intended show that ‘the meeting’ with OE took place. An understanding of the declaration application may be essential to an understanding of the judge’s decision; the ‘skull painting’ less so. The reader of the judgement (as would have been the case for anyone attending the hearing) can only make limited sense of it, without also being able to read certain basic documents.

 

What price proportionality?

 

The reality of transparency and the understanding of proceedings will be the greater if this issue – for courts which sit in private and in open court (as the example of the Guardian v Westminster case makes clear) – is looked at soon; and see Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

We shall never know what part ZS’s wealth had in the generosity of High Court time given to him. It certainly was not the difficulty of legal principle involved (despite the array of learned counsel deployed to argue it). Most of the cases cited are well-known; and do not form any express part of the judge’s decision-making (ie in one paragraph he merely lists the cases he has been referred to).

 

Secrecy over release of court documents is still not part of any ‘transparency’ procedure in any civil proceedings; and has nothing to do with a party’s money. However, it is a matter for thoughtful review of court process; and of anonymisation of read documents for private hearings.

 

And why anonymity?

 

Finally, it might be mentioned in passing: why was this case in private and why anonymity for the mysterious OE? The husband is found to have been ‘strategising and manoeuvring’ ([65]) over the case and aspects of OE’s evidence ‘are patently false’ ([68]). As Tomlinson LJ said in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 142 of a first instance decision not to publish:

 

[87] … It is I think unrealistic to assume that the revelation of dishonesty or other misconduct in the course of the litigation of a private dispute, particularly a matrimonial dispute, will necessarily attract any great interest from those not immediately affected by the outcome. I agree that dishonesty is not ordinarily entitled to confidentiality….

 

And any decision on anonymity is for the judge himself to address (R v Legal Aid Board exp Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA), since the parties are likely to want to keep this sort of hearing private (Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J).