Rights: privacy, anonymity and freedom of expression on family cases

‘Open justice’ in family proceedings

 

As a High Court judge (Mostyn J) has commented (in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) rights to open justice in family proceedings are a mess; though – sad to say, and as will be seen below (the Carmarthenshire case) – he has done his own bit to stir the muddled pot.

 

Family lawyers are debating whether financial relief hearings (an important part of the family courts’ work) should be in open court or in private (as FPR 2010 r 27.10 – though without any statutory or common law underlay) says they must be. Different Family Division judges take different views (and Mostyn J is one of the noisier ones on the subject).

 

Three cases in the last month remind lawyers generally of the variety of application of open justice principles:

 

  • The predominant issue is whether a case should be heard in public as common law has long required (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and see eg ‘To be heard in the dining hall…’: Scott 100 years on). Subsidiary to this are, for exampe:
  • Anonymity for a party to proceedings; or to a witness or others (eg expert witnesses, social workers etc) involved in the case (eg Khuja below);
  • Release of court and other hearing documents (a consequence of the Carmathen case below);
  • Publicity for a private (eg children) case (and the balance to be struck between privacy (European Convention 1950 Art 8) and freedom of expression (Art 10) (eg Southend case below).

 

Khuja : ‘what’s in a name?

 

Khuja v Times Newspapers Ltd [2017] UKSC 49 relates to the open justice principle and a person’s involvement – though not charged – in criminal proceedings. Charges arose from facts which are directly of concern to family lawyers, namely child sexual abuse (see eg Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam), [2015] 2 FLR 763 Keehan J). As Lord Sumption said (giving judgement for the 5:2 justice majority):

 

[1] For some years The Times and other media organisations have taken a close interest in investigating and reporting on allegations that the police and child protection authorities have failed adequately to confront a pattern of crime involving the sexual exploitation of vulnerable young teenage girls by older men. It need hardly be said that this is a subject of serious public concern. It has given rise to a number of government-ordered national inquiries, a review of standards of protection in children’s homes, and substantial changes in the procedures of the police and prosecuting authorities for handling such cases.

 

Nine men were tried on charges involving organised child sex in the Oxford area. Seven men were convicted. Khuja had been arrested, but not charged. After his release without charge, the newspapers successfully applied to lift an order preventing his identification. Khuja wanted to maintain a reporting restrictions order. The newspapers said that Khuja was ‘someone suspected by the police of being involved in sexual offences against children’. They wished to publish information about him ‘confined to material derived from the proceedings at the trial’ (§[4]).

 

The majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed: Lords Kerr and Wilson were the minority) noted that the appellant was seeking to prohibit the reporting of matters discussed at public trial. These were not matters where he had any reasonable expectation of privacy. The impact on the appellant’s family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family.

 

The public interest in allowing the press reporting of court proceedings extends to the appellant’s identity, said Lord Sumption. Media reporting of cases depends on the right of the public to be informed about public acts of the state, balanced against the law’s recognition that how a story is presented is a matter of editorial judgment.

 

Finally, what does a name matter? ‘What’s in a name? asked Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (and see Lord Sumption at §[29]). Lord Rodger answered himself:

 

‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, §[39] … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, §[59], ‘judges are not newspaper editors’.

 

Parents’ right to petition Parliament: Southend case

 

In Southend Borough Council v CO [2017] EWHC 1949 (Fam) MacDonald J considered a case in which parents of two children on whom placement orders had been made had publicised information about them on Facebook and had organised a petition on Change.org.  (Whether the mother had appealed against the placement order was not entirely clear to the judge.) By the time he came to deal with the case the parents – representing themselves – had agreed to the local authority’s application that information be removed from Facebook and other media. However, the mother insisted on their right to pursue their petition ‘addressed to the United Kingdom Parliament and the Prime Minister’. The consequences of any such right for freedom of expression was the issue on which MacDonald J gave judgment.

 

MacDonald J described Change.org as a ‘website that allows people or organisations to start a petition. Once a petition is started, members of the public can sign the petition electronically subject to providing their first and last name, their email address and their postcode’ (§[9]). It has ‘community guidelines’ which include particular reference to safeguarding children and their protection.

 

The local authority based their application on their concern to protect a child’s private life. The mother wanted the petition to remain in place ‘so that she could have her say with respect to a decision that she does not agree with’ (§[16]).

 

After an extensive review of the law, the judge agreed with the mother. The reporting restrictions order remained to the extent agreed between the parties, but not including any restriction on the mother’s right by her petition to advertise her disagreement with the court’s placement order decisions.

 

Right to freedom of expression

 

On the facts of this case (not as a general approach to on-line petitions: §[66]) the judge set out his decision at §[62]. He balanced the rights of the parents to freedom of expression under Convention Art 10 (especially ‘parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress’) against the Art 8 right of the children. He applied the ‘ultimate balancing test’ or proportionality (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at §[17]) and held that:

 

[62] … It cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

 

Release of hearings documents

 

The third case is little more than a post-script in all this; but it provides a useful illustration of some of the points considered in ‘Release of court hearing documents’. What documents – when and why? – may a court release to non-parties. What rights to freedom of expression (European Convention 1950 Art 10) do parents have?

 

In Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017), Mostyn J considered a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings, but he does not say so). This might have been clearer if Mostyn J had remembered – or been reminded by one of the nine barristers in court – of the following comment of his:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at §[16]). In law, there are real question on this as explained in ‘Release of court hearing documents’ (above). Thus, in Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1, Mostyn J was dealing with an application by the press for reporting restrictions to be lifted for the ancillary relief hearing of well-known musicians (and see Mostyn J in DL v SL [2015] EWHC 2621 (Fam); [2016] 2 FLR 552, also reported as L v L (Ancillary Relief Proceedings: Anonymity)  [2016] 1 WLR 1259). Save to a very limited extent (eg photographs of arrival at court) a reporting restrictions order was retained. Mostyn J [2015] EWHC 2689 (Fam) at [12] and [13], adopts Sir Mark’s “watchdog” role for the press:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR  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.

 

I think Lords Scarman and Bingham – and probably Sir James Munby P (see eg Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, Munby J – would have reminded Mostyn J of the importance of helping the press, in its ‘watchdog role’ – to make sense of proceedings. Transparency in the family courts remains a poor shadow of what it could be if – even if they are let in – the media and public can make no sense of the facts of what is going on.

 

And in terms of rights? The media have rights to freedom of expression as much as do parents to petition parliament; so long as, in each case, the children invloved remain anonymous.

CLARITY FIRST: DEAR TRANSPARENCY PROJECT…

Clarity first

Dear Transparency Project (http://www.transparencyproject.org.uk/)

I admire what you aim to do; though, as you know, I think your title – ‘transparency’ – is a euphemism. Like the President of the Family Division I think you look through the family law procedural telescope from the wrong end (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/) and think that, because it is family proceedings they must be held in private (see discussion of the illegality of Family Procedure Rules 2010 (‘FPR 2010’) r 27.10(1) (below)).

All family courts, like any court in England, in law must be open, subject to certain well-known exceptions (the most obvious being children law, which – I entirely understand – takes up a significant proportion of the work of family courts). Privacy is the exception, and must be justified. This has been explained time and again by the judges, most recently in eg A v British Broadcasting Corporation [2014] UKSC 25. Family lawyers (backed up, to their shame, by their failure to challenge eg FPR 2010 r 27.10) seem to think they are immune from the rule of the common law.

The modern view amongst family lawyers is, entirely correctly, that there should be ‘transparency’. Courts must be open. The press and public must be allowed in – the open justice principle (OJP) – save in the very small number of exceptions identified in Civil Procedure Rules 1998 r 39.2(3) and explained in such cases as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 through to A v British Broadcasting Corporation [2014] UKSC 25, and any number of high authorities before, since and in between. The OJP rules: Kennedy v The Charity Commission [2014] UKSC 20. And most of these exceptions are in the range of family proceedings (though the recent case in which the Court of Appeal explained the rules concerned a child in civil court proceedings: JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/).

Time to clean up the kitchen

But first, family lawyers, would it not be best if we look around at the kitchen into which the press and public are being so earnestly invited. I enter this caution, not because I do not agree with the OJP, subject to the important exceptions referred to in the cases above. I suggest caution because I fear that the public may be shocked by the grease and grubby black bugs it finds hidden away in the family court kitchen. Its procedural larders hide a variety of illegality and lack of clarity grimes over many parts of its stone-flagged floors.

If I ruled the family law world I’d want to be seen to be sorting out these failings in the family law system as I opened it up – according to what I understood to be the law – to the press and public. I would want to see, not that the substantive law on which it is based is changed – that is a law reform project for another day; but to see that its procedure and administration was lawful and expressed in clear terms.

Illegality and unlawfulness

I use ‘illegality’ in the sense it occurs in administrative law. Lord Diplock in House of Lords characterised it as one of the ‘grounds upon which administrative action is subject to control by judicial review’, that is the foundations of testing the vires (powers of administrators) of public bodies (Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 [1985] AC 374):

By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By ‘clarity’ I mean – er – ‘clarity’ (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/); or, more especially, that a law text is capable of being understood by the averagely intelligent layperson (‘AILP’). I do not mean that a text is reduced, like Orwell’s Newspeak, to its lowest common denominator. I trust most readers to be able to read a dictionary. An easy example of this is the change from garnishee to ‘third party debt order’.[1] Both start as meaningless, I suspect, to most lay readers, but I bet that most dictionaries will have ‘garnishee’ and a definition; but not a definition of ‘third party debt orders’. Being a composite term, it is likely that TPDOs will be hard to define from most dictionaries.

Clarity in a text does not mean that a reader should be patronised. It is a matter of good manners and common sense; and for lawyers it means respect for the rule of law, and of lawfulness. Lack of clarity is part of the lawlessness of family law procedure, so I will take ‘clarity’ first as a general subject, and then return to other aspects of illegality.

Clarity

The FPR 2010 rule-makers (the Family Procedure Rules Committee (FPRC)) derive their powers from Courts Act 2003 ss 75 and 76. It has no powers outside those provided to it by ss 75 and 76. Section 75(5) requires FPRC to exercise its powers to make rules –

(5) … with a view to securing that—

(a) the family justice system is accessible, fair and efficient, and

(b) the rules are both simple and simply expressed.

This is a highly subjective test; but to approach an understanding of it, it becomes necessary to define the AILP. Have FPRC done that? I doubt it. It is a test family lawyers must undertake soon. Till then, take for example, the proposed amendment as to FPR 2010 (intended as Part 3A). These amendments are intended to provide for the participation in family proceedings of children and ‘vulnerable witnesses’ (and see eg  http://www.transparencyproject.org.uk/guest-post-by-david-burrows-vulnerable-individuals-and-children-in-family-proceedings/ and http://www.familylaw.co.uk/news_and_comment/draft-rules-for-vulnerable-persons-in-family-proceedings#.VdDG8_mqqko). I defy most readers to understand the draft. Even the term ‘vulnerable’ is not defined; and some of the language is needlessly ponderous.

And do the rule-makers seriously expect the subjects of the draft – ‘vulnerable’ individuals and older children in family proceedings – to understand them? If they do, I fear they have failed my common sense and good manners test.

To make sense of s 75(5) an imaginary reader must be defined. Any text which is not regarded as ‘simple’ to him or her is unlawful: that is the statutory criterion. It is the law. It is not a sort of voluntary extra for FPRC to have in mind or not, according to the prevailing mood of the committee membership.

The importance of a clarity test, in more abstract terms, was explained by Lord Bingham as the first rule of his ‘Rule of law’ (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): namely that –

… the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

That was in pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 days. I wonder if Lord Bingham’s assumption that legal advice should always be available is tenable today? If so the need for clarity only becomes the more pressing still.

I doubt that much of family law procedural law is ‘simple’, ‘simply expressed’ (s 75(5)) or ‘intelligible and clear’ (in Lord Bingham’s terms). If that is the case then all provisions which are not ‘clear’ are outside the law as set down in s 75(5). Each of those not-‘simple’ rules are a cockroach in the family law kitchen into which the public is being welcomed. Cock-roaches should not be in any kitchen, whether or not it is open to the public.

Unlawfulness

Let’s assume, for now, that the rules are all set down in clear language. Even then, I believe, there are a number which are unlawful.

The easiest to explain is that on which the Transparency Project is based, namely FPR 2010 r 27.10. The majority of family lawyers seem to accept that r 27.10 somehow represents the law. Under the heading ‘Hearings in private’ the rule starts: ‘(1) Proceedings to which these rules apply [ie the vast majority of family proceedings in family courts] will be held in private, except…’; and then two exceptions are set out: that the court otherwise orders, or that another ‘enactment’ (in law that means statutes, rules, regulations and practice directions) ‘provides otherwise’.

Only eight years before FPR 2010 came into effect the Court of Appeal in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 took a lot of trouble to explain why proceedings under Family Law Act 1996 Part 4 (ie ‘family proceedings’ in terms of r 27.10) were public, certainly to the extent of release to the press of documents arising in them. For family lawyers rules on this subject are governed by the common law (best found as codified in Civil Procedure Rules 1998 r 31.21).

It is basic law that a rule, like r 27.10, cannot override the law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). The law is (for family lawyers) still the common law and as explained in Allan v Clibbery (above). Rule 27.10(1) cannot reverse the Court of Appeal decision. It is blatantly outside the law, yet it remains part of the rules made by FPRC.

FPR 2010 rr 9.14(4) and 9.16(1) (no disclosure save by Form E or as directed by the court) are so obviously unlawful in the light of MCA 1973 s 25(1) and (2) as explained by the House of Lords Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813, that no one takes any notice of the two provisions. They should not be there; and that they are ignored is not a good advertisement for rule-making, and another cockroach in the kitchen.

A letter written by one spouse (or their lawyer) to the other in an attempt to settle a case (normally confidential as between the two of them under without prejudice rule immunity (WPRI); and known as a Calderbank letter, after a Court of Appeal case) can be shown to the court when it comes to costs. The aim is to show reasonable the spouse who sent the letter has been in his/her attempts to settle a case. FPR 2010 r 28.3(8) seeks to reverse this process and to make it unlawful. This may breach principles of public policy – can a rule change ‘public policy’: I only ask? – as set out by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. That case said WPRI was ‘founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish’. The case of Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586 explains how this works in the case of costs. Rule 28.3(8) is of dubious legality. No family lawyer, as far as I know, has challenged that legality (eg under principles set out in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143).

Of cockroaches and grease in the family law kitchen

So, my friends, before too much fuss about letting the press and public in is made, it would surely be worth trying to clean up the procedural law kitchen. Illegality cockroaches and lack-of-simplicity grease must go. I would make clear and fully intelligible to the AILP the texts – rules and practice directions – on which family law procedure is based (I leave statute law for now). In doing so I would have Lord Bingham in mind and keep a careful eye on Courts Act 2003 s 75(5).

In doing that, I would make certain that every rule in FPR 2010 was in accordance with the law (statute and common law). Procedure serves the law. It is therefore necessary first to define the law and then to ensure that procedure follows it. It is Parliament and, failing that, the judges, who together make the law; not (as Dicey explained) civil servants and administrators (such as FPRC).

[1] See ‘Does a bell toll for garnishee’ [2002] Family Law David Burrows