Child contact, non-molestation and McKenzie Friends

Non-molestation and child arrangements orders

 

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Re J (Children) [2018] EWCA Civ 115 (6 February 2018) raises at least the following issues:

 

  1. Hearing of cases of domestic violence and the period any non-molestation order;
  2. Case management and how long it takes a children case to come to trial;
  3. Litigants in person and their McKenzie friends (MFs);
  4. The fair trial of a parent’s case where he cannot obtain legal aid.

 

After nearly 20 years of marriage a couple separated in September 2014 when the father left their home. They had three children then aged around 16, 13 and 8. W obtained a not on notice non-molestation order in December 2014 (why she applied three months after the separation, the report does not say). This included that H should not communicate with W or the children; and it continued till 22 December 2016, though an earlier return date in January 2015 was fixed. H wanted contact with his children. He cross-applied for a child arrangements order and for his own non-molestation order. He alleged balancing abusive behaviour by W. A ‘finding of fact’ hearing was fixed before a judge on 2 July 2015.

 

At that hearing H had a McKenzie Friend (MF). But how much part could MF play in the proceedings? He was refused permission to address the court or to cross-examine W. It was agreed that as H was offered contact there would be no fact-finding exercise; though the injunction, with no contact by H and no findings still stood. The children remained resistant to contact. Eventually a final hearing was fixed for 12/13 July 2016 (sic).

 

The father’s appeal

 

It was the decision at that hearing against which H appealled to the Court of Appeal on the following grounds:

 

  • The non-molestation order was allowed to run without determination of facts.
  • The MF had been wrongly denied a right of audience.
  • No findings of fact had been made.
  • The full powers of the court had not been used eg where their guardian admitted they were suffering emotional harm.

 

The outcome was a Pyrrhic victory for the father. His appeals on (1) and (3) were allowed; but no order was made by the court. The objections expressed to NYAS by the children to contact made any fresh hearing on the contact application, said the court, ‘simply too late and contrary to the welfare interests of the [younger two] children’ (para [99]).

 

It will be striking in this post, that many of the legal principles applied are derived from a practice direction (eg FPR 2010 PD12J) and from ‘practice guidance’. Neither of these have the force of law in the way that, for example, a statute or the common law (judge-made law) have. It might have been possible for the father at first instance to have challenged the judge on the content of the McKenzie Friend practice guidance (considered below); but that is a discussion for another day.

 

‘Findings of fact’ hearings

 

Routinely family judges set down hearings for ‘findings of fact’. I have never understood quite what this means. It is the principal function of a judge in any case whatever the background that the court finds facts, applies any law to those facts and then, exercising any discretion vested in him or her, disposes of the case – ie makes an order. Having a ‘finding of fact’ hearing implies there is in some way a phased process, in which establishing facts is the first step. This is only rarely the case.

 

I can see that case management here might have demanded that the abuse issues between H and W needed to be resolved at one hearing. This would result in an order. A second hearing, probably before the special measure judge, might then involve further factual and welfare issues to be resolved for the boys. Any child arrangements order could then be made and the extent (if any) of the father’s contact resolved. Domestic abuse and contact might be separate issues; but each will call upon a court – as with all cases tried every day – to find facts on which a determination may be based.

 

Non-molestation order and its duration

 

The non-molestation order made for two years was not ever revisited. This was in breach of the then practice direction (re-enforced by Practice guidance 18 January 2017: Family Court – Duration of without notice orders): that without notice orders should have a return date of not more than 14 days from the first order (para 5(ii)).

 

I am not at all sure this is what the law (as distinct from a ‘practice guidance’) says. Family Law Act 1996 s 42, which enables a court to make a non-molestation order, says that an order can be ‘for a specified period or until further order’ (s 42(7)). For H in this case there is no doubt that the period should have been much shorter and the facts on which the original order was made should have been tested much sooner (as the Court of Appeal accepted).

 

Domestic violence: delay and case management

 

The courts had had what McFarlane LJ called a ‘wake-up call’ as to ‘the potential harm to children that may arise from domestic abuse within a family, whether or not the children are directly involved in any particular episode of such abuse (para [39]) Re L; Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334. Practice directions have followed.

 

The most recent practice direction, was an amended PD12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm (October 2017) by which ‘courts are required, at an early stage in proceedings, to identify whether there are issues of domestic abuse and, if so, apply the requirements of PD12J to their management of the case’ (para [40]). PD12J para 19 requires court to ensure that cases which may involve domestic abuse are resolved and emphasises the need for ‘the proceedings to be “conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties” (emphasis added by the judge)’ (para [45]).

 

McKenzie friends

 

The role of McKenzie friends are regulated by practice guidance Practice guidance: McKenzie friends (civil and family courts): 12 July 2010 [2010] 2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P). There is no clear law on what their role and rights of audience are. No rules or even a practice direction, still less primary legislation, explains their positon.

 

By contrast common law backed by European Convention 1950 Art 6(1) (right to a fair trial) – and, perhaps, Art 6(3) (to be explained another day) – requires that anyone coming to court should have a fair trial. This is backed by Convention jurisprudence which declares that Art 6(1) entitles parties to ‘equality of arms’; and this is echoed in the family proceedings overriding objective that requires that parties be ‘on an equal footing’ (FPR 2010 r 1.1(2)(c)).

 

The practice guidance provides a definition of what a McKenzie Friend is and what they may do. The case of Re J, said McFarlane LJ ([68]), did not provide an opportunity to set out guidance beyond what is in the 12 July 2010 practice guidance. So far as cross-examination by a McKenzie Friend is concerned, the court by implication was not prepared to consider this. The ‘stark’ choice remains (as set out in K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754): either the alleged abuser cross-examines; or the judge puts the questions for him or her (MFPA 1984 s 31G(6)).

 

On the McKenzie Friend ground the father’s appeal was not allowed; though his McKenzie Friend was permitted to address the Court of Appeal. However, acting as ‘counsel in a trial’ said the Court of Appeal was an ‘altogether different issue’ ([62]).

 

Fairness of an alleged abuser’s trial

 

This still leaves the question of the fairness of the way in which cases such as H’s are tried, where someone in his position does not have access to legal aid nor the means to pay for representation. This is for another day, with the current legal aid provisions and with the law – such as it is – on McKenzie Friends and Arts 6(1) and 6(3) fully in mind.

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Sir Henry Brooke and human rights

20160419_170156Mubarak and the right to a fair trial

 

A great lawyer and a man concerned for rights, and that they be protected by legal aid, died yesterday. I am not qualified to comment on his life or his many achievements. However my professional career has been influenced by two cases which go to his concern for the rights of individuals in legal proceeding, and to the importance of European Convention 1950 rights.

 

In my many years of defending individuals (almost invariably men) who were taken to the magistrates’ court by Child Support Agency (Child Support Act 1991 s 40A) and their imprisonment sought for alleged arrears (which the Agency were not required to prove) I came to rely on the judgements of the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698 (Judgment: 14 December 2000). In that case Sir Henry, then Brooke LJ sat with Thorpe LJ and Jacob J and started his judgment – ‘a few words of my own’ – with:

 

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

 

Mr Mubarak was no angel. However, the case shows that entitlement to rights – ‘human rights’ – does not discriminate: rich or poor; male or female; or on grounds of gender or transgender; or religion or race. Mr Mubarak was an international jeweller who was ordered, following a hearing where he had submitted fraudulent evidence, to pay his former wife just under £5M. On his failure to pay the first £3M the wife issued a judgment summons under the then rules and in accordance with Debtors Act 1869 s 5. The wife stated simply that the husband had not paid the money which he had been ordered to pay. In a judgment which also considered the court’s inability to enforce the lump sum order against the husband’s companies, the judge made an order on the judgment summons, committing the husband to prison for 6 weeks, not to be put into force if the husband paid.

 

On the husband’s appeal and on his argument that the judgment summons procedure was not Human Rights Act 1998 compliant, the Court of Appeal agreed with him. The effect of the procedure was to require an alleged contemnor to provide evidence for his accuser; that is to self-incriminate.

 

Debtors Act 1869 s 5 in the twentieth century

 

Debtors Act 1869 s 5 provides a still-surviving Victorian procedure which, even 25 years ago, was described by Waite J (in R v Luton Magistrates’ Courts ex parte Sullivan [1992] 2 FLR 196) as

 

The power under s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.

 

Sir Henry’s was a classic of modern Human Rights Act 1998 informed procedural analysis. A person must know the case against them, and cannot be required to make their opponents case for them. He started with the case which lead to CPR 1998 rules being amended, Newman v Modern Bookbinders Ltd [2000] 1 WLR 2559 where Sedley LJ set out principles of general application to all cases of civil contempt which were going to be caught by European Convention 1950 Art 6:

 

[46]… Although the facts of that case are very far removed from the present, Sedley LJ spelt out the requirement for clarity of procedure and also the requirement that a person who faces what is now to be regarded as a criminal charge under Art 6 of the Convention should understand in detail the true nature and cause of the accusation against him. In para 26 of his judgment, Sedley LJ pointed out that this was one of the rights known longest to the law of England, ‘since, at least, the moment 350 years ago when John Lilburne demanded and finally obtained the sight of the indictment on which he was to be tried’.

 

An application to commit amount to a criminal charge and therefore Art 6.3 applies. Debtors Act 1869 s 5, he says, puts the onus correctly on the debtor to prove a case, which may then be followed by a means enquiry:

 

[56] What follows in s 5 is a procedure for a means inquiry. It reads: ‘Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.’

 

Privilege against self-incrimination and European Convention 1950

 

This both Brooke and Thorpe LJJ emphasised obliged ‘[57] …. the person who is facing what is now to be regarded as a criminal charge is to be cross-examined on oath as part of the same proceedings as part of the process of gathering evidence for the charge against him. That procedure cannot remain in place under European Convention 1950: nobody is obliged to incriminate themselves.’

 

And Sir Henry went on to explain how the then procedure in family proceedings (now modernised under FPR 2010 Pt 33) put ‘the burden of proof upside down’; and he concluded with a reminder then – in late 2000 – of the importance of the Convention:

 

[62] I have mentioned the requirements of the Convention. So far as they are relevant for current purposes, Art 6(1) requires ‘a fair and public hearing’. Article 6(2) requires that ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’… Article 6(3) provides that:

‘Everyone charged with a criminal offence has the following minimum rights:

(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him [the John Lilburne point];…

(d)to examine or have examined witnesses against him …’

[63]   Both these requirements seem to have been completely overlooked

by Mrs Mubarak’s former advisors when preparing their case in these proceedings.

 

Proceeds of Crime Act 2002 Part 7

 

Sir Henry gave the judgment of the court (himself, and Mance and Dyson LJJ) in Bowman v Fels [2005] EWCA Civ 226, [2005] 2 FLR 247. That case was of personal interest to me. Many family lawyers – including Dame Elizabeth Butler-Sloss P and Mostyn QC – believed the Proceeds of Crime Act 2002 Pt 7 meant lawyers must breach their clients’ privilege and pass confidential information to Government agents. I did not believe the Act meant this; but I was in a minority of one on the SFLA (Resolution) committee. I had no choice but to resign from the committee in January 2004. Bowman v Fels showed that I had been right, though y then it was much too late to go back to my job.


[86] There is nothing in the language of s 328 [the section which was said to cause privilege to be overridden] to suggest that Parliament expressly intended to override legal professional privilege. In his speech in R (Morgan Grenfell & Co Ltd) v Special Commissioner for Income Tax [2002] UKHL 21, [2003] 1 AC 563 Lord Hobhouse said at paras [45]–[46]:

‘[45] It is accepted that the statute does not contain any express words that abrogate the taxpayer’s common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect…. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

‘[46] In the present case the statutory language falls a long way short of meeting this criterion.’

[87]…Much stronger language would have been required if s 328 could be interpreted as bearing a necessary implication that legal professional privilege was to be overridden. As Lord Hoffmann said in R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115 (see para [81] above): ‘Fundamental rights cannot be overridden by general … words.’ For these reasons, even if s 328 does apply to the ordinary conduct of legal proceedings, it does not override legal professional privilege.

 

And there the subject has rested…

‘The Right to Justice’: political slogan or something more sinister?

Right to justice report

 

The Right to Justice (Fabian Policy Report, September 2017 http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf) (the Report) produced by an informal ‘Commission’ chaired by a labour politician (Willy Bach) provides a snappy – and potentially sinister – politician’s title for a serious subject. The idea that politicians can bestow a ‘right to justice’ is needlessly mixed up with the more serious subject of right to representation (or legal aid).

 

Most people in United Kingdom believe that they already have a right to justice; and so far as they believe that they are right. Politicians must not ever be permitted to interfere with it. ‘Right to justice’ is called a ‘fair trial’ in European Convention 1950 though the idea probably goes back 1,000 years before 1950. And, with the exception of the editor of the Daily Mail, most people probably think that justice is what British judges do very well (see eg the Miller case and EU withdrawal (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583) and the UNISON case (below)). In these totalitarian (or ‘populist’ as the journalists call it) times we do not need to be given justice, or any right to it, by any politicians.

 

The extent to which the Report can be taken seriously may be judged – sad to relate – by the fact that almost the whole of page 8 is taken up with a picture of a gavel. Gavels have nothing to do with English law (though can be seen in films in use by US judges). In UK (as far as is know) only auctioneers use gavels.

 

Bach: areas of reform

 

The Report has three main areas of proposed reform:

 

  • It proposes a statute to enshrine a ‘right to justice’ alongside a ‘right to reasonable legal assistance’. These must be backed by a ‘Right to Justice Act’ and a Justice Commission.
  • It suggests reforms to the administration of legal aid; and a fairer scheme for means-testing reforms. It proposes changes to the scope of work which can be done on legal aid.
  • It urges greater education in law and access to legal information.

 

This article takes the second area first. A number of helpful reforms are proposed. Many are a welcome return to pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 conditions. A legal aid scheme has three elements: a means test (which the Bach proposals will simplify and make more generous to applicants); a scope test (what proceedings will be covered by a certificate: the Report proposes extensions to this); and a merits test (does a case justify the tax-payer spending money on it?). The merits test has become increasingly complex (see now Civil Legal Aid (Merits Criteria) Regulations 2013), especially since Access to Justice Act 1999.

 

Calculating the merit of a case, within the terms of the merits regulations is hard for a lawyer. It must seem prohibitively difficult for an intending legal aid applicant. If this report is to be taken any further those who deal with it must address the complexities of the merits test. They could start – and even finish – with what was in Legal Aid Act 1988 (and earlier legal aid acts) for relative simplicity.

 

‘Right to justice’

 

‘Right to Justice’ is a political slogan. With its proposed ‘Right to Justice Act’ and ‘Justice Commission’, it recalls George Orwell’s Nineteen Eighty-Four. The idea that there could be a ‘Justice Commission’ where hitherto justice had been the preserve of the judiciary is straight out of Orwell. And Orwell would have been the first to point out, that what a politician gives another politician – especially in these increasingly totalitarian times (the modern Tory party want to control Parliament in a way not justified by its minority standing; and the Labour left seeks to increase its sway within the Party) – can take away.

 

One thing our judges do very well is justice. They do not need a commission to ‘guide’ them. Indeed the idea that Parliament should contemplate such a thing is constitutionally abhorrent. Politicians have sheared off rights already: LASPOA 2012 and benefits reforms are two obvious examples; and the National Health Service seems likely to follow. Judges seek to constrain politicians. In a country governed by the common law, their ability to provide a fair trial – justice, ‘right to a fair trial’ – should not needlessly be surrendered to politicians.

 

In the recent R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 Lord Kerr gives a brief background ([66]-[85]) to justice in England and Wales, now in the United Kingdom as a whole. Many in England have had access to justice since Anglo Saxon times; and certainly since Magna Carta (1215). By the 1620s Sir Edward Coke wrote of the right of ‘every subject of this Realme, for injury done… by any other subject may take his remedy by the course of law, and have justice’. For Blackstone in his Commentaries (1765-1769) it was the ‘right of every [man] of applying to the courts of justice for redress of injuries’. Both of these writers used the term ‘justice’. There was no need to justice, or the right to it, to be created or defined by statute.

 

Justice against totalitarianism

 

Justice is a judge’s job. It is developed by the common law. As Lord Kerr explained (at [68]): ‘Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’. Justice, by another name, is a ‘fair trial’. European Convention 1950 declares – it does not create – the existence of a right to a fair trial (Art 6.1). The Convention was the work in large part of British common lawyers. They were well aware of the long-standing right to justice which was a fundamental part of our common law. They needed no act of parliament to create that right. It is something which comes anyway, and as a matter of right, as a result of living within the jurisdiction of the English courts.

 

This country does not need another quango in the form of an Orwellian ‘Justice Commission’: to provide ‘guidance’ or ‘monitoring’ to judges. Judges have extensive case law to guide them. If they need to be ‘monitored’ that is already done by appellate courts. And a commission could be more sinister. In times of encroaching totalitarianism (Trump in the US; the AfD in Germany; the nationalist parties around Europe) then any right with which politicians can interfere must be guarded very carefully; and especially so if they plan to interfere with the judiciary. Scope of legal aid is for the politicians to decide upon. They must never be allowed to tamper with the scope of justice.

 

If by a ‘Justice Commission’ is meant someone to keep an eye on the operation of legal aid; then insofar as the legal aid administrators fail to do that, should not MPs do it themselves?

 

Right to legal representation

 

What this report is trying to do to is to redevelop the right to legal representation (ie legal aid) which was so drastically cut back by LASPOA 2012. A Legal Aid Act or a Right to Legal Representation bill, may not provide the politicians with such seductive titles; but this is what is wanted. ‘Right to Justice’ as a slogan is silly or sinister, according to the way things go. Legal representation paid for by the tax-payer is what is proposed.

 

Politicians are entitled to make political decisions on legal aid; whilst any ‘right to justice’ must be out of bounds to them. Politicians can decide on the extent of each of the tests of eligibility for legal aid: means, merit and scope. These are the political variables. Where does the political cursor stop? The Tories have made the means test more miserly. LASPOA 2012 has made the scope test both narrower than before, and absurdly complex (beset by legislative double and triple negatives). Superimposed on the scope test is an increasingly more obscure merits test. If clarity and accessibility by the public, where individuals must rely on it, is the test of good modern legislation the Tory legal aid legislation fails spectacularly.

 

This aspect of the Report is imaginative. It proposes return of legal aid for a number of areas of litigation, including aspects of children law; housing and immigration; and for judicial review and inquests. Representation by specialist lawyers is what defines legal aid. It is that which is so precious to the rights of ordinary people. As legislation and case law accrete, so the law and its application become more complex.

 

Lay education in law

 

Finally, the Report emphasises the importance of education in law for the general public. The internet provides access to the raw material of law which is impressive: Government web-sites (eg for legislation – not always up-to-date – and other government material) and BAILLI reports provide a superb array of source material. For the lay person – and indeed for many lawyers – the problem is that is undigested. BAILLI cannot provide head-notes to simplify the presentation of case reports: how could they? Statutory material fresh off the page is rarely easy to digest.

 

Yes, education in law should be provided; but that is a matter for the education departments – with help from lawyers – not for those concerned with the operation of the law. But to ease education in law, first more clarity is essential.

 

Lord Bingham’s first rule in his Rule of Law (Penguin 2010) was that ‘a law must be accessible and so far as possible intelligible, clear and predictable’ (pp 37-38). You must know, and that means understand, what the law is if you are to rely on it. Rights are only real if you know about them. Is my child entitled to school-transport; can I do anything about the leylandii my neighbour has planted and which is blocking my view; what right do I have as a child to express a view in my parent’s proceedings about me? Each of these may create rights for the person concerned; but they are not rights if that person does not know exactly what they are and how to do something about them.

 

This requires two things: clearer laws with more straightforward legal procedures; and, where need be, a right to legal representation for those who cannot otherwise afford it. The second – legal representation – is a question for legal aid. The first, clarity of law, is a massive – but fundamental – subject. Even if only at a preliminary (ie pre-advice) stage, an individual should know of rights. Otherwise that individual will not know that there is something to see a lawyer about.

 

A right is no right if you cannot understand the law which defines it

 

If you have a pain which does not get better, you can go and see a doctor. Under the UK National Health system the consultation is free. If you have a right which is being interfered with – or, like school transport, may not be being properly dealt with by your local authority – you need first to know there is a legal pain which could be made better. If you do not even know it is a treatable pain, because you do not know you have the right in the first place, your life is needlessly, or unfairly, the poorer.

 

So first, the need is for a Legal Aid Act; or a ‘right to legal representation act’, or even an ‘access to justice act’. Call it whatever the politicians will, so long as it is not called, still less that it pretends to give, a ‘right to justice’. Secondly, whatever the right to representation act is called, let it be written clearly. Anyone – including a child who, for example, wishes to know what legal part she or he can play in the child’s parents’ court proceedings over the child – must know that they have the right to seek legal advice if their income is such as to justify free legal assistance; and that, if need be, they can apply to a court for help.

 

If a person has a right to representation but cannot understand the triple negative law that defines that right, it is not a right.