Lay representation in civil proceedings


McKenzie friends in 2019: a debate….


Reforming the courts’ approach to McKenzie Friends , Consultation response of February 2019 from the Judicial Executive Board recites the questions the consultation raised and summarises the replies for and against each question (as a good judge does of the competing adversarial system arguments before the court). Its recommendations are brief:


‘The role of the judiciary is to apply the law concerning the provision of legal assistance, the right to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.’


The response goes on to set out the concern of the Board (JEB) that lay representatives (also called ‘McKenzie Friends’) ‘in effect provide professional services for reward’ when such representatives are


  • Unqualified and unregulated,
  • Uninsured and
  • Not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers.


‘The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system’. And so, the JEB says, ‘all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority’.


That is the nub of the problem: but it is one for the executive and the legislature properly to confront, not for the judiciary to try to muddle about with; for, as Lord Bingham so firmly stressed (Rule of Law), as have many others, the essence of law must be clarity, not  more Lord Chancellor fudge.


In this field – legal representation – clarity is fundamental. Otherwise some of the more vulnerable in society will suffer. Clarity means (1) proper training and qualification (which need be nowhere near that of qualified lawyers) which comes with (3) clarity on professional obligations; and (2) insurance and proper client accounts for any cash received.


Alongside all this must go the possibility of wasted costs orders being made against lay representatives (Senior Courts Act 1981 s 51(6) and (7)), just as they can be against professional advocates. (The only reference to ‘wasted costs’ is at p 21 of the consultation; but there is no JEB reflection on the fact that this – par excellence – is a matter for primary legislation; though non-party costs orders might be used against a lay representative: Senior Courts Act 1981 s 51(3).)


How far can judges go in regulation of lay representatives?


This creates a very real constitutional issue. Yes judges are responsible for the procedure of their courts. I believe this to be substantive: that is it need legislation not judicial tinkering. Do they have the powers to regulate who appears before them? I very much doubt it.


And while they are at it, they should look at the bar’s Direct Access scheme. I do not query the basis of the scheme; but all court advocates (and if it gets to it I would say the same of lay representatives) should have a client account; a proper scheme for time recording and a means of assessment (formerly taxation) by clients of their bills.


The response concludes – and it does so with no suggestion of irony, and little complaint – with:


‘It was suggested that, in the present environment where legal aid had been withdrawn, the Judiciary should consider;… the development, with the Bar Council, of a modern version of the pre-Legal Aid and Assistance Act 1949 in forma pauperis procedure. The in forma pauperis procedure was one under which the impecunious could be provided with pro bono legal representation in proceedings in the High Court and Court of Appeal.’


An in forma pauperis procedure was first developed by Cardinal Wolsey when he was Henry VIII’s Lord Chancellor in the early 16th Century. Have we really regressed that far?




If I were asked I would say advocates, as they do already – bar and solicitors – should compete; but on a properly regulated level playing field (which goes for Direct Access barristers as well) and with proper legal aid provision; but the government must stop hiding for, or ignoring, the problem which it has deliberately – or negligently – created.


Robert Craig and Gavin Phillipson: Could the ‘Meaningful Vote’ End up in Court?

Is it Parliament v the people – not a pretty site, but perhaps an inevitable bye-product of Brexit?

UK Constitutional Law Association

One of the most controversial issues during the passage of the European Union (Withdrawal) Act 2018 (‘EUWA’) was the so-called ‘meaningful vote’, which parliamentarians hoped would give the Commons a real say over any ‘deal’ reached by the Government with the EU (see previously on this blog posts by Alison Young and Jack Simson Caird). The provisions governing the vote are now set out exhaustively in s 13 EUWA (below).

This issue is now coming sharply into focus amongst parliamentarians and commentators as negotiations with the EU enter their final stages and attention starts to turn to the question of when and how the meaningful vote will take place. A post by Jack Simson Caird just this week considered some of the procedural issues surrounding the process of approval. This blog addresses the issue, recently alluded to by the Government, of possible legal challenges that might arise should…

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The mediator and suspicions of harm to a child


‘Sharing’ of information about a mature child


There is a poor alignment between what the law explained by House of Lords says to doctors and others on confidentiality for mature children – children of ‘age and understanding’: per Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – and what government guidance (eg Working Together 2015) says, especially to local authority staff (social workers, teachers etc). The law as explained by House of Lords in Gillick is still good law; and it trumps the guidance. If that is right then some of the guidance is wrong.


As an example, imagine that a child Angela, aged 15, tells her teacher Mrs Josselin (J) of things that are going on at home. She talks of excessive chastisement and other punishment that her step-father Steven Martin (M) has inflicted on her. The teacher listens, says little; but makes full notes of what she has been told immediately after Angela has spoken to her. Angela asks her teacher to tell no one; and especially to say nothing to her mother or M.


J speaks to her head-teacher. They feel they are bound by the guidance in Working Together 2018, and its stress on ‘sharing information’ (by which it means passing on information) such as:


‘24. Practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks or concerns about the safety and welfare of children, whether this is when problems are first emerging, or where a child is already known to local authority children’s social care (e.g. they are being supported as a child in need or have a child protection plan). Practitioners should be alert to sharing important information about any adults with whom that child has contact, which may impact the child’s safety or welfare.’


The school has had a number of concerns about Angela over the previous 18 months before. The head tells a social worker, and the social worker tells the police. The local authority looks into what has happened. Angela refuses to be interviewed further about what she told J; but J’s notes are passed to the local authority. No-one tells the parents what Angela has told the teacher and which sparked off the most recent enquiry.


Care proceedings follow; and the question of how Angela’s information in J’s notes is to be disclosed to the court, will be an issue – as, on that subject, will be the conflict in the law between the confidence in the information between Angela and the teacher. These questions are for another day.


Mediation and Angela: code of practice


Suppose the same information from Angela was passed on to a mediator, Jim Dixon (D). What are the mediator’s duties: (1) under any guidance or code of practice; and (2) in law (if different)? A mediator’s code of practice, from the Family Mediation Council (Code of Practice for Family Mediators May 2018) includes the following in relation to children:


‘5.2.2 Where it appears necessary so that a specific allegation that a child has suffered significant harm may be properly investigated, or where the Mediator suspects that a child is suffering or is likely to suffer significant harm, the Mediator must ensure that the appropriate agency or authority is notified. Wherever possible, the Mediator should make such a notification after consultation with his or her PPC.’


What follows deals only with children of age and understanding (Gillick-competent). For them and their confidentiality (or European Convention 1950 Art 8 rights to respect for their private life) para 5.2.2 comes in a passage headed ‘Confidentiality’. Uncontroversially, the previous paragraph (5.2.1) says (subject to 5.2.2):


‘… The Mediator must not disclose any information about, or obtained in the course of an Information and Assessment Meeting or during a mediation process to the other participant or to anyone including a court appointed officer or the court, without the express consent of each Participant, an order of the court or where the law imposes an overriding obligation of disclosure on Mediators to do so.’


The mediation process is entirely confidential, and only the parties (including any child) can waive confidentiality (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J). Unlike legal professional privilege, confidentiality can be overridden if a higher interest demands (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] UKHL 6, [1987] WLR 776, (Spycatcher case) per Lord Goff at 281).


Law and the Gillick-competent child


So what says the law (as opposed to guidance or practice codes) about the position of the mediator. The starting point for advice for D (the mediator) is that for a girl of her age – in the absence of mental incapacity (see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, Cobb J) – she is entitled to have her confidentiality respected (Gillick (above)). Gillick, after all, was specifically about confidentiality (a doctor’s position in relation to confidences, as to which, for modern guidance to doctors, see GMC Guidance on confidentiality ). What is said by House of Lords is a higher version of the law than government guidance.


The ‘guidance’ in Working Together 2018, is a lesser version of the law than Gillick. To the extent that it, and the mediation guide, promotes ‘sharing’ where a mature child’s confidences should be respected it is, surely, wrong?

Litigation privilege and family proceedings after SFO v ENRC


Litigation privilege explained: its relevance in family litigation


In Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 (judgment, 5 September 2018) The Law Society intervened: it was thought the case would prove important as a review of legal advice privilege which might impact on solicitors. The Law Society’s Gazette wrote that the Society had described the decision as being ‘a boost for the principle of lawyer-client confidentiality’. It was not that. Litigation privilege was explained and affirmed; and little more.


Little was said on the main aspect of legal professional privilege (namely legal advice privilege (LAP)); and what was said was obiter. The case was decided on the extent to which the more modest litigation privilege (LP) applies, especially where a corporate body is involved. LP was extensively reviewed (judgment was jointly by Sir Brian Leveson P, Sir Geoffrey Voss Chancellor of the High Court and McCombe LJ). So what does the judgment mean generally and for a family lawyer?


To answer this question the background and facts of the case must be touched on; the meaning of legal professional privilege (LPP) explained; the meaning and extent of LP looked at, in the light of the judgment; and the contexts in which LP may impacts on family proceedings looked at.




The case was an appeal from Andrews J (Director of Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (ENRC) [2017] EWHC 1017 (QB), [2017] 1 WLR 4205). ENRC were anticipating some form of enforcement raid by SFO. They were carefully considering self-reporting under SFO guidelines as a result of allegations of criminality on the part of certain African companies it was seeking to acquire. ENRC set in motion extensive enquiries as to the background and mostly involving members of their own staff by, amongst others, Dechert, a firm of solicitors.


SFO finally decided to ‘accept ENRC for criminal investigation’: that is to pursue their enquiries further. ENRC asserted LPP (ie advice privilege and LP) in relation to documents which had arisen in their internal enquiry. SFO replied with an application, heard ultimately by Andrews J, that there be a declaration that ENRC must disclose three categories of document (at [46]: a fourth category – ‘Category 3’ – did not feature in the appeal):


  • The first category was notes taken by Dechert of the evidence given to them by individuals (including employees and former employees or officers of ENRC and of its subsidiary companies) when asked about the events being investigated.
  • Next (‘Category 2’) was of the ‘books and records of Forensic Risk Alliance (FRA), a firm of forensic accountants and of reviews they carried out.
  • Finally, ‘Category 4’ comprised 17 documents referred to in a letter dated 22 August 2014 sent to the SFO by a barrister’s chambers.


Andrews J held that none of these were covered by privilege. The Court of Appeal held that all, save a couple of emails, were covered by LP.


Legal professional privilege and litigation privilege


So what is legal professional privilege? And what is the significance of litigation privilege, its sub-branch, especially in the light of SFO v ENRC? As noted by the Court of Appeal at ([63] and [64]) the meaning of LPP was summarised by Lord Carswell in Three Rivers District Council and ors v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274:


‘[105] … The cases establish[ed] that, so far from legal advice privilege being an outgrowth and extension of litigation privilege, legal professional privilege is a single integral privilege, whose sub-heads are legal advice privilege and litigation privilege, and that it is litigation privilege which is restricted to proceedings in a court of law in the manner which the authorities show…’


Although the Court of Appeal heard submissions on the subjects of both LAP and LP, they made their decision on LP alone (at 122]). Their comments on LAP ([124]-[143]) are not necessary to the decision. This centred on the view they took of the ‘dominant purpose test’ for LP in Waugh v British Railways Board [1980] AC 521 (‘Waugh’); a test which still stands. It was cited by the Court of Appeal as follows:


‘[103] It was common ground that the test to be adopted in relation to documents prepared for reasons which only included (but were not limited to) the conduct of litigation is that identified by the House of Lords in [Waugh].  The document over which privilege was asserted was a report prepared by officers of the [Board] into a fatal railway accident, it being clear, on the facts, that the report had been prepared for two purposes of equal importance (namely railway safety and litigation), and also that such reports were required to be prepared after all accidents, regardless of whether litigation was contemplated (see the judgment of Lord Wilberforce at pages 530B-531A).  In a judgment with which the other members of the House agreed in terms or in substance, he identified the test to be adopted (at page 533) in these terms:

“It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply.”’


The Court confirmed application of this principle at paras [91], [101] and [113] and concluded that LP applied to the documents in categories 1, 2 and 4 (other than the two emails) as follows:


‘[119] … We have concluded that the judge ought to have concluded that the documents were brought into existence for the dominant purpose of resisting or avoiding contemplated criminal proceedings against ENRC or its subsidiaries or their employees.


Litigation privilege and children proceedings


In Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 the House of Lords said LP did not apply to certain expert’s report in care proceedings. Lord Jauncey (giving the only reasoned speech on behalf of the majority in the House) said this was the case, because – he thought – care proceedings were not ‘adversarial’ (not perhaps an obvious conclusion in relation to today’s care proceedings). He said:


Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that care proceedings under Part IV of [Children Act 1989] are so far removed from normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child (emphasis added).


By ‘Part IV’ he was speaking of care or ‘public law’ proceedings. As Privilege (2013, 3rd Ed) by Colin Passmore stresses (at [3-235]), this quote applies only to care proceedings, not to proceedings under Children Act 1989 generally; though it is said to have been extended by obiter comments in the Court of Appeal in Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, CA; though that comment was not part of the ratio of the decision in Vernon.


And what of the rights of a child (whom Lord Jauncey excluded from his review) in such proceedings (see eg and United Nations Convention on the Rights of the Child 1989 Art 24)? When are proceedings ‘adversarial’ and when ‘inquisitorial’ (so LP may not apply)? These are subjects for another day….


Litigation privilege and family proceedings


Re L (Police Investigation) is not directly considered in SFO v ENRC. Since Re L holds that care proceedings (Children Act 1989 Part 4) are not adversarial, and SFO v ENRC concerned proceedings which were adversarial (and therefore that LP applied), the Re L decision is unnecessary to apply here.


To bring the discussion of LP full circle, it is important to go back to the rationale for LPP: that the privilege is essential to the administration of justice and to securing a fair trial. It enables the client to ‘make a clean breast’ of the client’s legal affairs without fear that what is said will be passed on to others (Anderson v Bank of British Columbia (1876) 2 ChD 644 at 649 per Sir George Jessel MR). It is considered essential to a system of justice (Greenough v Gaskell (1833)1 M & K 98 Lord Brougham LC) and is compatible with European Convention 1950 Art 6(1) (right to a fair trial). It gives the client an absolute right to refuse to produce to the court material which would otherwise be relevant to one or more issues before the court (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513).


By 1980 it was beyond question that this right to consult a lawyer freely extended, in cases of anticipated litigation (eg to the lawyer interviewing witnesses and obtaining expert evidence). In other words, that a lawyer could turn over any stone without fear that the lawyer might have to tell everyone in the case what was under the stone. Re L says, in effect, that Children Act 1989 Part 4 proceedings are not litigation. One wonders if children and their parents involved in such proceedings would agree? Given the issues involved – the possible loss of a child and their later adoption (in appropriate cases) – it is difficult to see what proceedings are less pregnant with serious litigation probabilities; but thus far in relation to Part 4 proceedings only the House of Lords has opined.


In relation to expert evidence obtained in preparation of other family proceedings (family money or private children proceedings) the position on LP remains as explained in SFO v ENRC. A lawyer is entitled to interview witnesses or obtain opinion evidence (subject only to obiter comments of the Court of Appeal in Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, CA), and not to disclose them unless the client agrees.


If a local authority accumulates evidence in a case, once it is clear that care proceedings might result, material arising from enquiries by their lawyers would be covered by LP (circumstances almost precisely analogous to ENRC in the case). If the lawyers acquire the material when the dominant purpose is possible Part 4 proceedings, the local authority is not obliged to produce it (though its existence should be disclosed in accordance with basic disclosure principles: FPR 2010 r 21.1(1)).

President Trump and his lawyer, Mr Cohen: and advice privilege and the ‘iniquity exemption’

Advice privilege and Mr Trump’s hush money


This morning the Guardian reported of President Trump’s lawyer:


‘Michael Cohen, his long-time lawyer and “fixer”, pleaded guilty to eight charges including campaign finance violations and directly implicated Trump in paying “hush money” to women with whom he allegedly had affairs.’


But where does that leave the long-standing rule: that what a person tells his or her lawyer is covered by secrecy (ie legal professional privilege (LPP), and its principal branch, legal advice privilege (LAP))?


In what follows I shall assume that paying ‘hush money’ in this context amounts to a crime; and that the law of privilege – based as it is on the common law (see eg R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185) – is broadly the same in the US as in English law (on which the following summary is based).


The ‘iniquity exemption’


The question of whether LAP applies where the purpose of discussions with the lawyer are to further a crime, or to join with the lawyer in jointly furthering a crime, date back at least to the later nineteenth centrury. In R v Cox and Railton (1884) 14 QBD 153 Court of Criminal Requests considered a case where partners consulted a solicitor for him to date a deed in such a way as to avoid property owned by one of them being subject to enforcement. The head-note summarises the position: ‘Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure.’ Stephens J explained this at 170-171, on grounds that a fraudulent purpose prevents LAP even existing:


‘The principle on which we proceed is this: that where anything is done, any communication made from a client to an attorney, with reference to a [171] fraudulent purpose, the privilege does not exist; the fraudulent character of the communication takes away the privilege.’


The issue arose a couple of years ago when the ‘Panama papers’ were leaked to the press. The question remains with those papers: to what extent are any of the leaked documents covered by LAP at all; or were they outside the scheme of privilege so that the press legitimately (and indeed formerly married parties’ lawyers) could publicise the material.


Public interest in confidentiality


There is a strong public interest in confidential information remaining private (Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (Spycatcher case)); and even more so in the case of confidential information also covered by LAP.


LAP applies to confidential information passed to a lawyer by a client or a potential court witness, to enable the lawyer to advise and to act for the client. It applies to the advice provided by the lawyer. LAP depends on there being a confidential relationship between a client and his or her lawyer. The right to privacy which results is the right of the client, not of the lawyer. The question in the Panama papers was: has the leaker of the information in any way permissibly breached the individual client’s confidentiality (whatever one may think of that individual’s tax affairs or other dealings)?


The justification for LPP is its importance to administration of justice: that an individual should have the right (ie not strictly a ‘privilege’) privately to ‘make a clean breast’ of a matter to a legal adviser (Anderson v Bank of British Columbia (1876) 2 ChD 644), as explained by Jessel MR at 649:


‘The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men… [That being so it is necessary that a client] should be able to make a clean breast of it to the gentleman whom he consults …; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.’


A history of LPP and a classic definition can be found in Lord Taylor CJ’s speech in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513. This case stressed the extent of the public interest in administration of justice: that a lawyer must be able to give his client an unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent; and that this assurance is absolute subject only to the qualifications referred to below.


‘Iniquity exemption’ and a justification for production in court


The question for a common law court remains: was Michael Cohen’s advice given to Mr Trump (as he then was), or documents created to further crime or fraud. If they were, then privilege will not assist the client. What then is President Trump’s position on this question in the case of any ‘hush money’ paid, and of any advice given to deal with those payments?


David Burrows

22 August 2018

Author of Privilege, Privacy and Confidentiality in Family Proceedings (in preparation, Bloomsbury Professional


Cohabitation property law: a short introduction

Cohabitants: money, children and domestic abuse


If the process of family breakdown can be characterised, from a legal point of view, as dealing with children (including child financial support), money, any domestic abuse and (in the case of marriage) divorce, then in all of these the law does not distinguish between married and unmarried couples. Divorce does not apply to unmarried couples, obviously; but the fat of not being married is fundamental to financial and property issues between married and unmarried couples; and that is the main thrust of what follows.


On the fortieth anniversary of the Court of Appeal judgment in Davis v Johnson [1978] UKHL 1, [1979] AC 264 (27 November 2017: the case went on to House of Lords) it is worth comparing the law in 1977 with now to show that things have moved a little; but they have not moved in the area of property law and other financial support between cohabitants. This article looks at the present law for those who live together, and who may have children and share property.


The law in 2017 does not discriminate when it comes to cohabitants in respect of their children, child support and domestic abuse; though, as explained in Davis v Johnson in 1977 the law moved forward in a way which, at the time, was regarded as truly radical.


Domestic Violence and Matrimonial Proceedings Act 1976


In the Court of Appeal Lord Denning MR (who sat with four other judges including Sir George Baker P) described the background to Domestic Violence and Matrimonial Proceedings Act 1976 as:


‘Battered wives’ are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in the [1976 Act]. This Act came into force in June of last year. Soon afterwards many a woman sought the aid of the county courts for protection under the Act….


In the House of Lords Lord Scarman (at 347) described the operative part of the 1976 Act as providing a ‘new remedy’, and that also for unmarried partners, as follows:


Subsection (2) enables an unmarried woman (or man) who is living with a man (or woman) in the same household as husband and wife to apply to the county court under subsection (1) and expressly provides that reference in subsection (1) to the matrimonial home shall be construed as a reference to the household in which they are living together. This reference indicates to my mind that those provisions of subsection (1), which make available to married people an injunction excluding the other party from the matrimonial home and an injunction requiring the other party to permit the applicant to enter and remain in the matrimonial home, are intended to be available also to unmarried partners.


In particular the Act was designed to restrain a party to a marriage from ‘molesting the applicant’ or ‘a child living with her’ (s 1(1)(a) and (b)); and declares that the remedy in s 1(1) shall –


(2) … apply to a man and a woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage and any reference to the matrimonial home shall be construed accordingly.


This was the radical extension under the 1976 Act and was succeeded in 1995/6 by what became Family Law Act 1996 1996 Part 4, which preserves (as FLA 1996 s 42) the terminology, undefined, of ‘molestation’ used – as it had been in civil proceedings injunctions – up to then. I considered this more fully in Lord Scarman and a definition of domestic abuse.


Discrimination and cohabitation law


In contrast to the modern law on domestic abuse, property law (including from income – ie maintenance as between partners) is entirely discriminatory as between couples where they are married or not married. There is, generally, no discrimination in children law (eg under Children Act 1989) or where child support maintenance is concerned (Child Support Act 1991) according to whether parents are married or not. This is also the case in respect of domestic violence or of exclusion orders (the sop to the Daily Mail and assorted Tory MPs in Family Law Act 1996 s 41 (which said that if a couple were not married then where ‘the court [should] have regard to the fact that they have not given each other the commitment involved in marriage’ has been repealed).


The law does not differentiate according to gender, sexual orientation or religion. In one of the leading cases, Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858, Barry Stack was the non-owning partner and claimant; and an important case on proprietary estoppel (Wayling v Jones [1995] 2 FLR 1029) concerned a same sex couple. That said, it is most likely to be the carer mother who is affected by the unfairness in the law.


If a couple is married there is a very clear divide between between the statute law which governs them (Matrimonial Causes Act 1973 ss 22-25A (mostly)), which depends on the discretion of the judges as to how their capital is distributed on relationship breakdown (divorce) and if they are not married, but jointly occupy freehold property. Where couples cohabit, and whether they own property jointly or only one owns, there is tangle between common law (mostly equity) with little scope for judicial discretion. For example, in the recent Liden v Burton [2016] EWCA Civ 275 (proprietary estoppel: see later) Hamblen LJ characterised the issues on appeal as: ‘(1) whether the judge wrongly applied the law to the facts as found; (2) whether the judge erred in the exercise of his discretion in giving effect to the equity’ in the particular case.


Cohabitation and co-ownership


Two particular sets of circumstances arise: first, where an unmarried couple – hetero-sexual or same sex – live together and jointly own property; or, secondly, where they live together in property which is in the name of one only (A) but the other (B) asserts a claim over that property. The question then is to what extent B may able successfully to pursue a claim against the property in A’s name. If they were married B would have a share unquestionably (the amount would depend on ‘all the circumstances’ of the case: Matrimonial Causes Act 1973 s 25). If they are unmarried (whether with or without children), all sorts of arguments may be needed if B is to secure a share.


The starting point is legal title. What is recorded at the Land Registry? What was said at the time when the property was purchased? Equity follows the law. Thus, for example, the law says that if two people own property jointly they have an equal interest in that property, unless the documents say something different. If a property is owned by one of them only, no-one else has a share (save as explained in trust interests below). Lady Hale explained this in Stack v Dowden [2007] UKHL 17, [2007] 1 FLR 1858 as follows:


[56] Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all. In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest.


If B claims a different share from what appears on the title then it is for B to prove it. Equitable principles apply. In practice these are more akin to contract principles than to the discretionary rules which apply on marriage breakdown. It remains the case that equity may be able to adjust the shares which appear on the title documents; but it is for the claimant to say why this adjustment should happen.


Implied trusts: resulting or constructive


The differential ownership – the ‘beneficial interests’ – which equity allows for is to imply a trust:


  • A resulting trust – Equity says that two (or more) owners share land in the proportions in which they put money up to buy it even though on the face of the title ownership is different; or
  • A constructive trust – The court imposes on A the requirement to hold property in some way other than required by law.


The purchase of property, where another person (A) makes a contribution, generally sets up a resulting trust in favour of the contributor proportionate to any cash contribution. Thus where A gives money to B to buy property, and B does so then a trust results to A for the value of his or her contribution (Dyer v Dyer (1788) 2 Cox Eq Cas 92). B is a trustee for himself and A. A can then enforce the trust as trustee under Trusts of Land and Appointment of Trustees Act 1996 (as explained in Pt 3) not eg as a mortgagee or unsecured lender.


The resulting trust is no more than an equitable presumption. It must yield to other evidence that demonstrates that no such interest was intended eg that a loan or a charge were intended; or that (say) a gift was intended (see discussion in Marr v Collie (Bahamas) [2017] UKPC 17, [2017] 2 FLR 674).


Constructive trust


The more common trust as between cohabitants is where A buys, or (at the relevant time in the relationship) already owns, property in A’s sole name; or that A and B jointly own property, but one of them wishes to say that they own it in shares which are other than equal. The issue then is whether the court will adjust the shares shown on the legal title or will grant a share at all; though as Lady Hale made clear in Stack v Dowden: ‘[69] …. cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.’


A trust may be constructed first where the court finds there is an agreement between A and B for differential holding and in addition the court finds that there has been ‘detrimental reliance’ by B on that agreement (Lloyds Bank plc v Rosset [1991] 1 AC 107, [1990] 2 WLR 867, [1990] 2 FLR 155). Thus whilst the resulting trust arises from contributions, the constructive trust is concerned with an agreement, understanding or other bargain relating to property.


Thus (say) a man (A) owns property, and agrees with B that she will come and live with him. B gives up her house to live with A (Grant v Edwards [1987] 1 FLR 87, CA); or she puts up money to be used towards the refurbishment of property (Drake v Whipp [1996] 1 FLR 826, CA). Conduct on the part of the claimant may be evidence of an agreement: in Eves v Eves [1975] 1 WLR 1338, CA Janet Eves did a variety of work there, including wielding a 14lb sledge hammer to break up concrete which covered the front.


Indeed, Eves v Eves includes the following from Lord Denning MR (at 1431). He describes an unmarried couple:


… They get a house; but it is put in his name alone. Then, before they get married, the relationship breaks down. In strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street. She is not entitled to any maintenance from him for herself. All she can do is to go to the magistrates and ask for an affiliation order against him on the footing that she is a “single woman”: and get an order for him to pay maintenance for the children. If he does not pay, she may have great difficulty in getting any money out of him, even for the children. Such is the strict law. And a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing.


Little has changed in property law since then. Affiliation orders have gone and are largely replaced by orders under Children Act 1989 and by child support maintenance under Child Support Act 1991. Family Law Act 1996 has developed the law in relation to occupation and non-molestation orders. Equity may be able to bear children, as Lord Denning asserts; but the cohabitation cases considered in this article have hardly taken the law any further forward when it comes to adjustment of property owned by unmarried cohabitants.


Adjusting shares in jointly owned property


Secondly, a trust may be constructed which alters the legal entitlement where parties own property jointly, but one seeks a differential share. There the court can construct a trust which alters the legal entitlement. Thus in Stack v Dowden a property was held in the parties joint names, which had been bought by them from the proceeds of sale of a property originally owned solely by Ms Dowden. They had brought up their four children in the house. This and other factors lead the Court of Appeal to award Mr Stack 35%, a division upheld by the House of Lords (for reasons explained further later).


The constructive trust must be contrasted from proprietary estoppel (with which it shares certain features: eg detrimental reliance). Proprietary estoppel enables the court to hold that, where there has been a promise upon which a party has acted to their detriment, then the promissor should be estopped from denying the existence of the promise and from denying the benefit that was promised by it. The constructive trust vests a beneficial interest in the claimant, that is to say a trust interest in property which can be enforced by an order for sale under TLATA 1996 s 14. Proprietary estoppel will not necessarily result in any proprietary interest, but may result in a damages claim (akin to breach of contract), depending on the nature of the promise and the extent of the detriment.


Defining the shares


Where the court declares a constructive trust but determines that it should be in shares other than equal, how are the shares defined? Jones v Kernott [2011] UKSC 53 [2012] 1 FLR 45 the Supreme Court attempted to explain their earlier Stack v Dowden.


The main factor in a convoluted background in Jones v Kernott was that the couple’s jointly owned property provided a home for J and two children of the relationship; and that liquidation of a life policy belonging to both of them had enabled K to buy his own separate property. These facts enabled the court to infer an intention to alter the legal title to a trust which reduced K’s share to 10% of the property. Lord Kerr summarised their common ground between the justices as, first, that a the common intention may be inferred objectively from the parties’ conduct; or, failing that, that each of the couple is entitled to such share as the court considers fair; and in considering fairness the court must consider the ‘whole course of dealing between the parties’.


Lady Hale and Lord Walker explained these propositions as:


[47] In a case such as this, where the parties already share the beneficial interest, and the question is what their interests are and whether their interests have changed, the court will try to deduce what their actual intentions were at the relevant time. It cannot impose a solution upon them which is contrary to what the evidence shows that they actually intended. But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.


Need for law reform


In truth, property law for cohabitants has only moved fractionally since Lord Denning’s comments in Eves v Eves. Some of the more depressing aspects of this area of law include


  • The failure of political parties to recognise the fundamental need for thoroughgoing reform to recognise the modern attitude to unmarried families and their children;
  • The law’s failure to recognise that the fact that one partner reposes trust in the other must be recognised fully by the law; and
  • That couples do not necessarily sit down before marriage or before starting their relationship and meticulously plan their financial futures as was recognised by the very human words of that human Chancery judge Waite LJ in Midland Bank plc v Cooke [1995] 2 FLR 915, CA – over twenty years ago – when he said (at 927):


Equity has traditionally been a system which matches established principle to the demands of social change. The mass diffusion of home ownership has been one of the most striking social changes of our own time. The present case is typical of hundreds, perhaps even thousands, of others. When people, especially young people, agree to share their lives in joint homes they do so on a basis of mutual trust and in the expectation that their relationship will endure. Despite the efforts that have been made by many responsible bodies to counsel prospective cohabitants as to the risks of taking shared interests in property without legal advice, it is unrealistic to expect that advice to be followed on a universal scale. For a couple embarking on a serious relationship, discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together….


Urgent law reform is needed to make cohabitation property law fair, especially – but not only – where couples have children and where one (generally the mother) gives up a career or time at work to look after the couples’ children.

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  (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 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.