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.

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How real are a child’s rights to be heard (2)?

A version of https://dbfamilylaw.wordpress.com/2017/08/08/how-real-are-a-childs-rights-to-be-heard/ with references

 

A child’s rights to express a view

 

UN Convention on the Rights of the Child 1989 Art 12 states that signatories must give children who are capable of forming their own views ‘the right to express those views’. A child must be given an opportunity to do this in ‘all matters affecting the child’ either through ‘a representative or an appropriate body’. Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24.1 says much the same thing.

 

This article asks how these rights are recognised in English law. The short answer is hardly at all; or not in any real way if the child does not find out about that child’s rights. If the child does find out or – in court proceedings – someone tells the child, it is very much a matter for the individual judge whether the child manages to express a view. As English law – as opposed to international rights laws – now stands, the right to express a view is not anywhere near as clear as Art 12 implies.

 

If a child wishes to express a view on the case and finds out about that right, the law on how to do so is a mess (described by one Court of Appeal judge as of ‘complexity’ Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 at §[18]); and mostly dotted around Children Act 1989 (CA 1989) and Family Procedure Rules 2010 (FPR 2010) Pt 16. And if a child wants legal aid, different rules and definitions apply so as to make the law more confusing still.

 

This is a truly disturbing state of affairs, given that – as the rules are drafted – it is intended that a child should be able to make her or his own application (FPR 2010 r 16.6); and yet experienced family lawyers (as the Re W case (above) shows) can be perplexed by the law.

 

UN Convention rights

 

The UN Convention Art 12 says the following:

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

The EU Charter at Art 24.1 says that ‘Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.’

 

As can be seen, both Articles place a positive duty on states to take children’s views into consideration; and to take steps to ensure this is done. So how is this dealt with in English courts where a child is of ‘age and maturity’ (or Gillick-competent, after the House of Lords case of Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224, which said that in matters of confidentiality and views a child of ‘intelligence and understanding’ must be listened to)? The legal term ‘child’ is used here as of anyone under 18 (CA 1989 s 105(1)); though the extent to which that ‘child’s’ views are considered will depend on the child’s maturity and the issue with which the court is concerned.

 

Mature child in court proceedings

 

This article is concerned with children in court proceedings, which are of five main types:

 

  • between a child’s family and a local authority who asks the court to find that the child is suffering ‘significant harm’ (care or ‘public law’ proceedings: CA 1989 Pts 4 and 5);
  • between a child’s parents (eg as to with which parent a child is to live or how much contact each parent is to have) (‘private law’ proceedings: CA 1989 s 8);
  • where a child wishes to make the child’s own private law application (CA 1989 s 10(8));
  • where a child wishes to be joined as a party in existing private law proceedings and to have something to say to the court; and
  • proceedings where a child has been brought to the United Kingdom by a parent and the other says the child has been abducted.

 

Each of these types of case has different court rules and legal aid definitions (legal aid will be left till a later article).

 

(1)        Public law proceedings

 

Mostly application of the rules in public law proceedings is quite clear. The child has a children’s guardian (CA 1989 s 41) and automatic legal aid. The court appoints a solicitor (or the mature child choses one: CA 1989 s 41(3)(a)). If the child disagrees with the view of the children’s guardian, she or he instructs the solicitor direct. The solicitor must act on the child’s instructions (FPR 2010 r 16.29(2)). Even that is not always clear to judges and lawyers as the Re W case (above showed). And I think the Court of Appeal in that case got the distinction between ‘specified proceedings’ (in Children Act 1989 s 41) and ‘special Children Act 1989 cases’ and ‘public law children cases’ for legal aid muddled up (see separate article).

 

(2)        Private law proceedings: parents’ application

 

Where one parent applies to a court for an order (a child arrangements order) for their child, and that child is of ‘age and understanding’ (which the Court of Appeal has said could be as young as 7: Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347) that child has rights under Arts 12 and 24.1; yet in practice it is a matter of hit-or-miss as to whether the court (the judge or someone else in the court administration) tells the child about this. It is likely only to arise if there is a contest, and the court appoints a court officer (‘CAFCASS’) to see the child and report to the court.

 

Yet, as can be seen from Art 12 (above), the child has a right ‘to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’. This is not a matter for the judge to decide according to whim. Surely it means that in every case a child’s maturity must be assessed – even if only quite briefly – and that child be asked if they want to express a view? That does not mean the view will necessarily be followed (Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961); but it must be a factor included amongst things considered by the court before a decision is made.

 

(3)        Child’s private law application

 

A child has the right, if of ‘sufficient understanding’ (CA 1989 s 10(8)) to instruct a lawyer and to make an application on her or his own behalf. This is dealt with under separate court rules, which deal both with how a child deals with the case through a solicitor or alone (FPR 2010 r 16.6). Legal aid may be available to the child in this type of application and the next (4).

 

(4)        Child joining in proceedings

 

Similar principles apply where a mature child wishes to be ‘joined’ (FPR 2010 r 12.12(2)(c)), and have a say, in a parents proceedings. A CAFCASS officer may have been appointed but the child may not agree with the officer’s views. In that case, as a highly respected family judge has said, it is essential that a child feels their independent view has been heard by the court (Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011).

 

The child may be able to have a lawyer on legal aid (based on the child’s financial circumstances).

 

(5)        Child abduction proceedings

 

Special rules, some set out in Convention on the Civil Aspects of International Child Abduction 1980 (‘Hague Convention’) itself, require the courts by one means or another to take account of a child’s views before making an order. In practice there are specialist CAFCASS officers in London (where these proceedings are heard) who discuss a child’s views with her or him.

 

The child may be formally joined in the parents’ proceedings (and if so have a solicitor on legal aid); though separate joining in the proceedings by no means guaranteed.

 

Court procedure

 

Court procedure varies for each of the above categories. There is no clear definition of when or how a child’s views shall be considered. There is no clear definition of when a child must be told what her or his rights are and how this is to be done.

 

The President of the Family Division set up a working group over three years ago: the Vulnerable Witnesses and Children Working Group. The group has drafted new court rules (now over two years old) to answer some of the concerns in this article. The draft does nothing to clarify the procedures which already operate; nor to sort out the complex legal aid provisions which apply to children.

 

As far as I know there is no clear document which explains to mature children what their rights are when they or their parents are involved in court proceedings about them. Still less does the working group deal with how it expects children to be informed of their rights under the UN Convention and how children’s maturity should be considered by the court. Only then will the judge know whether a child’s views under Art 12 should be ‘expressed’ to the court; and only then can the judge start to consider how this should be done.

How real are a child’s rights to be heard?

A child’s rights to express a view

 

UN Convention on the Rights of the Child 1989 Art 12 states that signatories must give children who are capable of forming their own views ‘the right to express those views’. A child must be given an opportunity to do this in ‘all matters affecting the child’ either through ‘a representative or an appropriate body’. Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24.1 says much the same thing.

 

This article asks how these rights are recognised in English law. The short answer is hardly at all; or not in any real way if the child does not find out about that child’s rights. If the child does find out or – in court proceedings – someone tells the child, it is very much a matter for the individual judge whether the child manages to express a view. As English law – as opposed to international rights laws – now stands, the right to express a view is not anywhere near as clear as Art 12 implies.

 

If a child wishes to express a view on the case and finds out about that right, the law on how to do so is a mess (described by one Court of Appeal judge as of ‘complexity’ Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 at §[18]). And if a child wants legal aid, different rules and definitions apply so as to make the law more confusing still.

 

This is a truly disturbing state of affairs, given that – as the rules are drafted – it is intended that a child should be able to make her or his own application; and yet experienced family lawyers (as the Re W case shows) can be perplexed by the law.

 

UN Convention rights

 

The UN Convention Art 12 says the following:

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

The EU Charter at Art 24.1 says that ‘Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.’

 

As can be seen, both Articles place a positive duty on states to take children’s views into consideration; and to take steps to ensure this is done. So how is this dealt with in English courts where a child is of ‘age and maturity’ (or Gillick-competent, after the House of Lords case of Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224, which said that in matters of confidentiality and views a child of ‘intelligence and understanding’ must be listened to)? The legal term ‘child’ is used here as of anyone under 18; though the extent to which that ‘child’s’ views are considered will depend on the child’s maturity and the issue with which the court is concerned.

 

Mature child in court proceedings

 

This article is concerned with children in court proceedings, which are of five main types:

 

  • between a child’s family and a local authority who asks the court to find that the child is suffering ‘significant harm’ (care or ‘public law’ proceedings);
  • between a child’s parents (eg as to with which parent a child is to live or how much contact each parent is to have) (‘private law’ proceedings);
  • where a child wishes to make the child’s own private law application;
  • where a child wishes to be joined as a party in existing private law proceedings and to have something to say to the court; and
  • proceedings where a child has been brought to the United Kingdom by a parent and the other says the child has been abducted.

 

Each of these types of case has different court rules and legal aid definitions (legal aid will be left till a later article).

 

(1)        Public law proceedings

 

Mostly application of the rules in public law proceedings is quite clear. The child has a children’s guardian and automatic legal aid. The court appoints a solicitor (or the mature child choses one: though I bet the child is not often told of this right). If the child disagrees with the view of the children’s guardian, she or he instructs the solicitor direct. The solicitor must act on the child’s instructions. Even that is not always clear to judges and lawyers as the Re W case (above showed). And I think the Court of Appeal in that case got the distinction between ‘specified proceedings’ (in Children Act 1989 s 41) and ‘special Children Act 1989 cases’ and ‘public law children cases’ for legal aid muddled up (see separate article).

 

(2)        Private law proceedings: parents’ application

 

Where one parent applies to a court for an order (a child arrangements order) for their child, and that child is of ‘age and understanding’ (which the Court of Appeal has said could be as young as 7) that child has rights under Arts 12 and 24.1; yet in practice it is a matter of hit-or-miss as to whether the court (the judge or someone else in the court administration) tells the child about this. It is likely only to arise if there is a contest, and the court appoints a court officer (‘CAFCASS’) to see the child and report to the court.

 

Yet, as can be seen from Art 12 (above), the child has a right ‘to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’. This is not a matter for the judge to decide according to whim. Surely it means that in every case a child’s maturity must be assessed – even if only quite briefly – and that child be asked if they want to express a view? That does not mean the view will necessarily be followed; but it must be a factor included amongst things considered by the court before a decision is made.

 

(3)        Child’s private law application

 

A child has the right, if of ‘sufficient understanding’ (Children Act 1989 s 10(8)) to instruct a lawyer and to make an application on her or his own behalf. This is dealt with under separate court rules, which deal both with how a child deals with the case through a solicitor or alone. Legal aid may be available to the child in this type of application and the next (4).

 

(4)        Child joining in proceedings

 

Similar principles apply where a mature child wishes to be ‘joined’, and have a say, in a parents proceedings. A CAFCASS officer may have been appointed but the child may not agree with the officer’s views. In that case, as a highly respected family judge has said, it is essential that a child feels their independent view has been heard by the court.

 

The child may be able to have a lawyer on legal aid (based on the child’s financial circumstances).

 

(5)        Child abduction proceedings

 

Special rules, some set out in Convention on the Civil Aspects of International Child Abduction 1980 (‘Hague Convention’) itself, require the courts by one means or another to take account of a child’s views before making an order. In practice there are specialist CAFCASS officers in London (where these proceedings are heard) who discuss a child’s views with her or him.

 

The child may be formally joined in the parents’ proceedings (and if so have a solicitor on legal aid); though separate joining in the proceedings by no means guaranteed.

 

Court procedure

 

Court procedure varies for each of the above categories. There is no clear definition of when or how a child’s views shall be considered. There is no clear definition of when a child must be told what her or his rights are and how this is to be done.

 

The President of the Family Division set up a working group over three years ago: the Vulnerable Witnesses and Children Working Group. The group has drafted new court rules (now over two years old) to answer some of the concerns in this article. The draft does nothing to clarify the procedures which already operate; nor to sort out the complex legal aid provisions which apply to children.

 

As far as I know there is no clear document which explains to mature children what their rights are when they or their parents are involved in court proceedings about them. Still less does the working group deal with how it expects children to be informed of their rights under the UN Convention and how children’s maturity should be considered by the court. Only then will the judge know whether a child’s views under Art 12 should be ‘expressed’ to the court; and only then can the judge start to consider how this should be done.

This article is designed for general readership. It will be followed with a separate version with a number of the legal references included.

 

Is it rational to trigger Article 50?

EU WITHDRAWAL AND PRIME MINISTER’S REASONS

 

The present Government proposes that the United Kingdom withdraw from the European Union following a referendum on the issue in June 2016. A Bill giving the decision on triggering the process to withdraw to the Prime Minister is going swiftly through Parliament. This article considers how a Prime Minister must exercise her judgment in taking that decision, by considering the following questions:

 

  • Discretion and reason – What is discretion and exercise of judgement; and how is it affected by operation of the rationality of the decision-maker (ie the Prime Minister in this case)?
  • Referendum result – How does reason apply to the referendum result; and how far was the result ‘advisory’?
  • Rights and EU withdrawal – How does the treatment of rights in EU withdrawal apply to an exercise of reason?

 

The EU withdrawal issue has been twice before the courts in recent months: before the Divisional Court in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html) and the Supreme Court as R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 (http://www.bailii.org/uk/cases/UKSC/2017/5.html). They will be referred to as Miller 1 and Miller 2 respectively.

 

These cases resolved only whether the Government must have Parliament’s permission – that is, an Act of Parliament – for the Prime Minister to trigger the process for UK’s coming out of the EU and by activating Treaty of European Union 1992 Article 50. At the time of writing there is a Bill before Parliament (set out below) which will do what the two courts said the Government must do.

 

This article concerns only the narrow point of what should operate on the mind of the Prime Minister when she considers the rationality of whether or not to trigger Art 50. In particular it will look at this in the light of two points: (1) the advisory nature of the referendum and (2) the rights of UK nationals and EU members engaged.

 

 

DISCRETION, JUDGEMENT AND REASON

 

Exercise of discretion

 

Any Minister to whose job is to exercise a discretion, or judgment in the making of a decision, must exercise it rationally. If judgment is exercised by a Government minister it must be exercised wisely and according to the law. It must be exercised according to reason, and not in an arbitrary way. Administrative Law (2014) Wade & Forsyth (11th Ed), often quoted by

 

A minister’s reasoning depends on appropriate information being provided to him/her. If appropriate information is provided and understood the minister has a firm foundation for making a decision. If there is a choice of courses, the minister decides by exercise of discretion. That exercise of discretion is governed by the same legal principles in 2017 as over 400 years ago in Rookes Case. In that case in 1598 the report, by Edward Coke, later Sir Edward Coke, said of the exercise of discretion of commissioners of sewers:

 

That they should do according to their discretions, yet their proceedings ought to be limited and bounded within the Rules of Law and Reason; for that discretion is a Science to discern betwixt falsity and truth, between right and wrong, between shadows and substance, betwixt equity and colourable glosses, and the Commissioners ought not to follow their wills and private affections;

 

The rationality of any exercise of discretion can always be brought into question. Statutory power is, in a sense, vested in a minister on trust for the governed as a whole. Therefore ‘unfettered governmental discretion is a contradiction in terms’ (Administrative Law (above) at p 295). The modern statement of the law on this is Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924 where a majority (four to one) in the House of Lords refused to permit a government minister to act in a way which, they said, was no in accordance with the Act of Parliament under which he proceeded (in that case with complaints from farmers about a Milk Marketing Board pricing scheme).

 

Lord Reid explained his view of the law after first saying that, it seemed to him, that the minister was trying to argue that there could only be ‘two possible interpretations of this provision either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.’ Lord Reid refused to accept this argument by the Minister:

 

I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

 

Prime Minister’s discretion

 

That is, according to Padfield, it is necessary to find out first what a relevant Act intends. The problem with the European Union (Notification of Withdrawal) Bill – and it is still a Bill – is that it does not say what it intends beyond giving authority ‘to notify’ the UK’s intention to leave the EU. Clause 1(1) says, under the heading ‘1 Power to notify withdrawal from the EU’:

 

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

 

And therein lies the discretion: the Prime Minister ‘may notify’. She has to decide. In so doing she must act rationally. Underlying that rationality question it is critical for her to be clear – and preferably to say that she is clear – what is meant by the 2016 referendum. Secondly, she needs to understand as fully as possible what will be changed adversely to those she represents – the UK nationals affected in the variety of ways involved – as a result of triggering Article.

 

The first of these points – the advisory nature of the referendum – has been explained to her, or for her, by the High Court and Supreme Court. The second could not have informed the electorate’s mind when they voted in the referendum – as she well knows. She knows this because neither she nor the army of civil servants working on the question have begun to give her an informed view of it all – eg by presenting or publishing a draft ‘Great Reform Bill’.

 

So that takes us back to Coke and what is meant by the discretion she has been given by s 1(1) and how she exercises it.

 

 

THE REFERENDUM

 

Meaning of the 2016 referendum

 

The referendum issue can be approached in this way. In December 2015, the UK Parliament passed the European Union Referendum Act 2015. The ensuing referendum on 23 June 2016 produced a majority of those who voted, favour of leaving the European Union. UK government ministers then announced that they would bring UK membership of the European Union to an end.

 

The effect of any referendum said the Supreme Court in Miller 2 depends on the following:

 

[118] … the terms of the statute which authorises it. Further, legislation authorising a referendum more often than not has provided for the consequences on the result. Thus, the authorising statute may enact a change in the law subject to the proviso that it is not to come into effect unless approved by a majority in the referendum

 

The 2015 Act did not state what the outcome of the referendum was to mean. It left what was to happen next open. No provision was made in the Act for the consequences of the referendum. The earlier 1975 referendum was described by ministers as advisory, whereas the 2016 referendum was described as advisory by some ministers and as decisive by others. So how had ministers seen the question of outcome of the referendum, asked the Supreme Court:

 

[125] It is instructive to see how the issue was addressed in ministers’ response to the 12th Report of Session 2009-10 of the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom). The Committee included the following recommendation in para 197:

“[B]ecause of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”

The UK government’s response as recorded in the Committee’s Fourth Report of Session 2010-11 was

“The Government agrees with this recommendation. Under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

 

The courts and the referendum: ‘advisory’ said the High Court

 

So in 2010 ministers were told the referendum ‘cannot be legally binding’, and are therefore ‘advisory’; and in 2011 ‘Parliament must be responsible’ for any decision. In the Divisional Court in Miller 1 the judges drew attention to the parliamentary briefing paper No 7212 Pt 5.

 

[107] Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.

 

The ‘briefing paper’ referred to in §107 is set out in Annex 1 to this article. The passage which is likely to have been in members’ minds when they voted for the 2015 Act, and should be in Mrs May’s mind now, is in Pt 5 as follows:

 

[The Referendum Bill (as it was then)] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

 

The Supreme Court decision in Miller 2 was, in the end, expressed by the majority as simply as:

 

[124] Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.

 

 

RIGHTS AND EU WITHDRAWAL

 

EU rights lost by withdrawal: the judge’s view

 

If new legislation is planned the Government department publishes a green paper for discussion of a subject and for it to receive views. A white paper can then follow to set out Government policy and is likely to be followed by a bill setting out proposed new law. Here there has been a four line bill (awaiting its third reading as I write). There has been no green paper; and a white paper emerged from the Government whilst the bill was going through Parliament.

 

So what is the Government’s understanding of rights which may be lost – to EU nationals in the UK, and to UK nationals in the EU – by EU withdrawal? This should perhaps be uppermost in a reasonable Prime Minister’s mind if she considers the triggering of Art 50?

 

In Miller 1 the Divisional Court explained that under European Communities Act 1972 s 2(1) rights had been incorporated into – ‘given legal effect’ under – UK law (§§[57]-[66]). The court identified three categories of rights under ECA 1972 and EU law (a categorisation accepted by the Supreme Court: see Miller 2 at §69) which would be affected or lost as a result of EU withdrawal:

 

  • Rights capable of being reproduced in UK law;
  • Rights derived by UK citizens from EU law in other member states;
  • Rights of participation in EU institutions that could not be replicated in UK law.

 

The Supreme Court explained that, in general terms (at §69) ‘our domestic law will change as a result of the United Kingdom ceasing to be party to [the EU treaties], and rights enjoyed by UK residents granted through EU law will be affected’. The Supreme Court went on, at §§70-72 to give examples of these rights. For example in category (1), a lengthy paragraph included:

 

[70] … They include, for instance, the rights of UK citizens to the benefit of employment protection such as the Working Time Directive, to equal treatment and to the protection of EU competition law, and the right of non-residents to the benefit of the “four freedoms” (free movement of people, goods and capital, and freedom to provide services)….

 

The Divisional Court explained the consequences for these rights as follows:

 

[64] As to category (1) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer [by the Government] to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect….

 

What the Divisional Court said of category (2) rights included the following (italics added):

 

[65] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (2) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament.

 

The Prime Minister on rights

 

So what does the Prime Minister, who is to sign off Art 50(2), think of all this? We have her 17 January 2017 speech and the White Paper to test this. What do these say on the subjects? This and the white paper is the only real test, so far, of her reasoning on the subject. Her speech of 17 January said that

 

… we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

 

So what laws did she have in mind, bearing in mind what the judges had said on the subject:

 

We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can. I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now.

 

Mrs May suggests surprise in her speech that not all EU members will agree; and if they will not where does that leave category (2) rights? Is that of concern to her? She does not say. It is a matter which, it could be argued, should act on her mind before she triggers Art 50.

 

She then dealt with protection of ‘workers’ rights’. ‘A fairer Britain’ is a country ‘that protects and enhances the rights people have at work…. we will ensure that workers’ rights are fully protected and maintained.’ She did not distinguish between rights of workers in the UK, and of UK nationals in EU countries.

 

EU withdrawal White Paper: treatment of rights

 

The Government’s White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’, February 2017 (Cm 9417) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf) put a little flesh on the bones of Mrs May’s 17 January speech. (It is that White paper which included – with only one verb, ‘’s’, in the quoted paragraph (on page 3) – the remarkable: ‘And another thing that’s important. The essential ingredient of our success. The strength and support of 65 million people willing us to make it happen.)

 

The contents page of the White Paper is set out at the end of this article (Annex 2). It says the White paper deals with rights in two contexts only:

 

  • Securing rights for EU nationals in the UK, and UK nationals in the EU
  • Protecting workers’ rights

 

The White Paper does not attempt to list these rights nor to deal with them in the way that the two judgments do. Still less does the White Paper produce the Government’s promised – or is it? – Great Repeal Bill. Securing rights for EU nationals, and for UK nationals in the EU is dealt with in two page; and one of those pages is mostly graphs. The second page includes:

 

6.3 Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations…

6.4 The Government would have liked to resolve this issue ahead of the formal negotiations. And although many EU Member States favour such an agreement, this has not proven possible. The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.

 

These two paragraphs – on which the rights for the future a number of people depend – represents no substance: not what rights are engaged and how they will be dealt with, for example. As far as it goes – and that is not very far – it is little more than hope and a little recrimination. There is not reflection that if things like this had been considered with EU partners (as they still are) before a decision to leave, they might have been a little keener to help. Mrs May seems a remarkably naive negotiator, but perhaps that goes with bossiness.

 

‘Workers’ rights’ get even less: one page, two paragraphs and no graphs. And that is it on the rights sections. Compare the White Paper with the efforts to provide information in the two court judgements and that put into production of a White Paper which should have been in gestation since June last year, and you realise how this country is served by its judges as against by its government.

 

 

CONCLUSION: REASON IN EXERCISE OF DISCRETION

 

How to define the nut; defining the rights lost

 

In the case of R (Quila & anor) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, [2012] 1 FLR 788 (http://www.bailii.org/uk/cases/UKSC/2011/45.html) the Supreme Court were concerned with a Home Office regulation which – to help to combat forced marriages, it was said – raised the age for immigration to the UK for marriage to 21. Such evidence as there was suggested that many more unforced marriages would be impeded than forced marriages prevented. Had the Secretary of State (Mrs May, as it happens) acted rationally in deciding to agree to the regulation?

 

No said Lord Wilson (with whom three of the other four Supreme Court Justices agreed). She had identified a nut, but failed to identify the size of the nut to which she was taking a sledge-hammer:

 

[58] … The number of forced marriages which [the regulation] deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made…. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut.

 

Leaving the EU is the sledge-hammer which the referendum has advised Mrs May – no more than advised – to wield. One aspect of the nut – the problems which, it is thought, EU withdrawal would solve and the advantages it create – can no doubt be guessed at by any number of Brexit enthusiasts. But – the other aspect of the nut – a reasonable person must weigh all matters in the balance.

 

Rights of UK nationals and EU members to be lost

 

The factors the Prime Minister must put in the balance – and which she might have to explain to a High Court judge (the equivalent of the number of unforced marriages in the Quila case) – have not been explained by her to us. The White Paper does not do it. Amongst these factors, it might be thought by her, are the loss or disruption of many rights which go for EU members in the UK and UK nationals in the EU; workers’ rights; rights on family breakdown and for children if parties live in UK and EU respectively. Many more such rights have yet to be clarified and their future enacted into draft legislation. (Had they been defined by a Government department it is most likely we would have a draft ‘Great Reform Bill’ by now.)

 

It is the Prime Minister’s decision if the Bill is passed. She does not have to say how she reaches her decision, but the less she says the more she may have to explain later. Within the range of the two areas covered in this article – the size of the rights ‘nut’ and an understanding that the referendum was ‘advisory’ of MPs only – it can be said of the Prime Minister’s decision that two conclusions follow.

 

First, for the Prime Minister to proceed on the basis that she must withdraw UK from the EU because it is the ‘will of the people’ is wrong. Constitutional principle (supported by the 7212 briefing paper (Annex 1 below) and the Divisional Court and Supreme Court) is that it is a decision for her and MPs. This decision of MPs takes into account, only, the referendum outcome. Secondly, without setting out fully and clearly what rights will be lost and with what consequences she expects for those affected the Prime Minister cannot rationally exercise her discretion to trigger Art 50.

 

The combination of both grounds makes any decision at this stage open to a challenge that it has been arrived at irrationally; and if challenged successfully, that it could be declared void by the High Court.

 

David Burrows

8 February 2017

© David Burrows, Paris 2017

 

 

ANNEX 1

 

Extract from Briefing Paper

 

  1. Types of referendum This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented. In the event, there was a substantial majority against any change. The 1975 referendum was held after the re-negotiated terms of the UK’s EC membership had been agreed by all EC Member States and the terms set out in a command paper and agreed by both Houses.64

 

 

ANNEX 2

 

Contents page of White Paper

 

  1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.
  2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.
  3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.
  4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.
  5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.
  6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.
  7. Protecting workers’ rights – We will protect and enhance existing workers’ rights. 8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.
  8. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world. 10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.
  9. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.
  10. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

 

On-line divorce scheme: an update…

Users to be recruited for on-line divorce system

 

At the end of January a practice direction was added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title; but it was not clear how to gain access to the new scheme. This has been explained by HMCTS.

 

After publication of PD36D inquiries were made of Ministry of Justice and of Family Procedure Rules Committee. These inquiries elicited the response that HMCTS are in the first phase of the pilot. Potential users of the new scheme will be personally invited to use the system and given access following a screening process at the pilot site. Therefore, at this stage in the pilot, access to the pilot is controlled whilst HMCTS build confidence in the system for any wider use. The pilot is being run at the East Midlands Divorce Unit in Nottingham and HMCTS are currently recruiting users in the local area to participate in the pilot. How these ‘users’ are chosen, is not stated.

 

With this in mind, I have updated my note of 31 January 2017 (https://dbfamilylaw.wordpress.com/2017/01/31/on-line-divorce-scheme/). Subject to that I have retained most of the original text. The ‘system’ represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

Lawfulness of rule changes

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). That said, I am concerned that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4) (CA 2013)) which enables the rule-makers to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (CA 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274). However, there is nothing to say a practice direction (which is a lesser statutory species) can alter a rule.

 

PD36D says that where it ‘applies’ an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ (CA 2003 s 75(5)(b)). When it comes to amendment of rules I am anxious as to whether this PD is lawful (as explained above: the President using a practice direction to alter a rule, which originally is made by a statutory body). And is it ‘simple’ or ‘simply expressed’? This is a field where the scheme must be designed for use by private individuals who are proceeding without a lawyer (litigants in person). This one of a number of questions HMCTS will, no doubt, want to answer.

 

Further thoughts on the clarity of the scheme include:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the PD speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority). Let us hope HMCTS can be clear on terminology, and that – in the usual way – a statute takes priority over a rule.
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce: same points as above apply.

 

The new PD has had some publicity amongst family lawyers. It would have been helpful for the plans for it to have been made more public, and for PD36D to have had an explanatory note – something which goes out with all statutory instruments – so all of us knew what was intended by it. It would have been of value if that note had included:

 

  • That the new pilot system applies to all divorces from [a date] for [the individuals who are to be targeted by the scheme]
  • Whether or not it is compulsory for those chosen
  • Where information about the scheme can be found at [link to site]
  • Any information about the data collected, confidentiality etc.

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should please have been amended by another rule. It is sobering to think that someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, and the petitioner has remarried, that could be bigamy, and another petition – nullity this time – may be involved.

 

This, perhaps, puts a duty on the respondent’s adviser who is troubled by the legality of these rules. I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).

Reasons for judgment

Common law duty to provide reasons

 

In a passage which applies to any common law judgment, and certainly to any in civil or family proceedings Lord Phillips MP (in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at §[118]): ‘while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the Judge to produce a judgment that gives a clear explanation for his or her order’.

 

This case and the principles encapsulated in it were recently referred to in Iqbal v Iqbal [2016] EWCA Civ 19 (judgment: 25 January 2017). In that case, the Court of Appeal was confronted by an appeal by a husband who had been committed to prison on evidence which they felt was inadequate. Basic procedural rules were not followed. The husband had not been present when an ancillary relief order was made and on the wife applicant’s evidence only. A committal order was made on a judgment summons application involving just under £4M, as was explained by the Sir Ernest Ryder, Senior President of Tribunals in the Court of Appeal.

 

Inadequate evidence on judgment summons application

 

In his judgement Sir Ernest dealt with the evidence and judgment in the proceedings which lead to the order and which Mrs Iqbal wanted to enforce. Despite its inquisitorial functions, the court failed to make further inquiries as to the husband’s means; but proceeded on assumptions:

 

[20] Financial remedy proceedings in the Family Court are in part inquisitorial, however hotly contested the issues may be between the parties. The court has an obligation to satisfy itself about the statutory factors that are relevant to the decision it makes or the settlement it approves given that the parties have an obligation of full and frank disclosure. At any stage during the final hearing the judge could have asked about the existence and content of the basic evidential materials, for example the husband’s Form E. He did not. The manner in which assumptions were made by the judge can be ascertained from this exchange on the transcript between the judge and the wife:

 

Judge Brasse: He has not provided any information in this case at all.

Ms Iqbal: Yes

 

No attempt was made by the judge to test the wife’s evidence:

 

[21] … The wife was not sworn and relied upon her submissions and signed documents which contained no truth recital. There was no real attempt by the court to test anything that the wife said. The process of determining that the husband had assets of £6,440,000 was little more than an inadequate (and it appears incorrect) computational exercise based upon what the wife said to the judge in court. In one exchange the judge says “What is the evidence? (And) you have not got it” and in another he comments: “I appreciate that you do not have any actual original documents to support these, but you assert that…”. The judge was on notice of the evidential failings inherent in the process that was being conducted and yet he failed to act upon his own warnings.

 

Requirement to give reasons

 

The judge provided no judgment, nor any reasons, for what he had decided:

 

[22] The judge failed to give a formal judgment with the consequence that this court has had to analyse the transcript to ascertain whether there is a clear thread within the discussion which identifies the conclusions to which the judge came and sufficient reasoning for the same….  It should not be taken as read that this court will undertake that process lightly given the clear strictures of this court which apply as much to family proceedings as any other civil process: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Parties are entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts.

 

It is this passage and the references to reasons for a judgment which leads to this note. In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 the Court of Appeal, in a judgment of the court (Lord Philips MR, Latham and Arden LJJ) and under a heading ‘The requirement to give reasons under common law’, said that ‘[15] There is a general recognition in the common law jurisdictions that it is desirable for Judges to give reasons for their decisions’. This is not only so that parties may be clear as to whether they have grounds of appeal, and that an appellate court knows how a judge has reached his/her decision, but also:

 

  • That justice may ‘be seen to be done;
  • If decisions are to be acceptable to the parties and to members of the public;
  • A requirement to give reasons may help to concentrate a judges mind; and
  • Reasons may also provide an important means under the common law for setting precedents for the future

 

So, said the court, to put it at its simplest (§[16]): ‘justice will not be done if it is not apparent to the parties why one has won and the other has lost’; and the ‘why’ requires reasons, not just a statement of what the judge has decided and a bald order of the court.

 

Sufficient to comply with requirement

 

So what is sufficient to comply with the requirement for reasons? There is no need for a judge to deal with every argument put forward by a party; but – in a passage the court held, should apply to all judgments (§[18]) – Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 at 122 said:

 

When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted… (see Sachs LJ in Knight v Clifton [1971] 2 AER 378 at 392–393, [1971] Ch. 700 at 721).

 

Thus if appeals are to work properly the judge must enable the appellate court to understand why a decision was reached:

 

[19] It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process….

 

The court concluded this passage by referring to a judge’s approach to expert evidence and reasons why one expert may have been referred to another:

 

[20] The first two appeals with which we are concerned involved conflicts of expert evidence. In Flannery Henry LJ quoted from the judgment of Bingham LJ in Eckersley v Binnie (1988) 18 Con L.R. 1 at 77-8 in which he said that ‘a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal’. This does not mean that the judgment should contain a passage which suggests that the Judge has applied the same, or even a superior, degree of expertise to that displayed by the witness. He should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another…. Whatever the explanation may be, it should be apparent from the judgment.

 

Lack of reasons will not necessarily justify an appeal; but if an order is made which does not make immediate sense justification for an appeal may more readily be found.

Abuse by cross-examination in family courts

 

Law reform, Women’s Aid and a Parliamentary domestic violence group

 

The All-Party Parliamentary Group report on domestic violence, Domestic Abuse, Child Contact and the Family Courts All-Party Parliamentary Group on Domestic Violence (APPG report) of October 2016  (https://www.naccc.org.uk/downloads/NewsItems/APPG_Inquiry_report_Domestic_Abuse_Child_Contact_and_the_Family_Court.pdf) deals with domestic abuse and with contact in the context of family cases where contact is ordered. This article deals only with domestic abuse in the context of family court proceedings, and in particular the further abuse which may be inflicted by cross-examination of the complainant (A) by the alleged abuser (B); and, perhaps to a lesser extent, where A – as a party – may wish to cross-examine B. This is a subject covered extensively on this site already (and parts of previous detail are repeated here). This takes the subject further by reference to the APPG report and concludes with specific suggestions for law reform, which teh Justice Secretary might like to consider.

 

The issue is described by the APPG report (page 4):

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

The report recommends ‘special measures’ which in family courts terms are proposed to include ‘dedicated safe waiting rooms for vulnerable witnesses and separate entrance and exit times [for them in all] family courts’. These measures could go much wider, especially – as discussed here – in relation to Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) and as highlighted by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at §28 (and see https://dbfamilylaw.wordpress.com/2017/01/09/vulnerable-witnesses-and-children-human-rights-and-legal-aid/).

 

Where domestic violence and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for A to be submitted to cross-examination by B; and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article therefore proposes:

 

  • Ways in which some funded help for A (under (1) and (2) above) can be provided as the law now stands; and
  • Specifically to draft a suggested law reform which can be set out as a Schedule to an existing Bill and added as an amendment to Family Law Act 1996 Part 4 (which deals with the present statute law on domestic violence).

 

Family proceedings: lagging behind criminal proceedings

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James Munby, President of the Family Division which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. The need of the abused party (A) was highlighted in H v L and R [2006] EWHC 3099 (Fam) where a father (ie B) wanted to cross-examine his child’s abused mother. The judge, Roderic Wood J, ‘invited urgent attention’ (§[25]) to judges being given power to appoint a publicly funded advocate in criminal proceedings as under YJCEA 1999 s 38(4). 10 years later, beyond a review urged by the Guardian and Women’s Aid and ordered by the Justice Secretary, Lynn Truss, nothing has happened.

 

In criminal proceedings, a witness in A’s position is protected (YJCEA 1999 Part 2 Ch II). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Complainant: a party to proceedings

 

Criminal proceedings in this area are procedurally different from civil proceedings, and especially family proceedings; though both are capable of dealing with the same set of facts, though with different results. In criminal proceedings Crown Prosecution Service takes proceedings. Though A is the complainant, she is a witness so there will always be a CPS advocate to deal with her evidence in court and to cross-examine B. In family proceedings she is, by definition, a party. She still gives evidence and may be cross-examined (as in (1) above, considered more below); but, if unrepresented, she is responsible for running the case and for cross-examining B (ie (2) above).

 

So if she may not best be able to deal with cross-examination of B, because intimidated or for all the reasons she may want an advocate appointed, then already – that is, as the law now stands – Matrimonial and Family Proceedings Act 1984 s 31G(6) says:

 

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

 

So long as a judge accepts that A is ‘unable to… cross-examine’ B – and in the context a judge should need little persuasion of that – then s 31G(6) applies and the judge will ‘ascertain’ from A matters which need to be put to B and will question him him/herself in terms which are in A’s ‘interests’.

 

Section 31G(6) has been the subject of a small amount of case law; but, for the avoidance of doubt in the area defined by (2), a clear steer (ie a finding) by the common law (ie by a High Court judge in a decided case) on the subject as soon as possible would be helpful.

 

Cross-examination of the complainant

 

It is the situation at (1) above which calls for extra care, and for public funding. Formal parliamentary law reform would be infinitely preferable, to put the issue beyond doubt. However, if A is legally aided then it is suggested here that help along the lines of YJCEA 1999 Ch 2, and especially ss 38(4) and 40, could be available and be treated analogically in family proceedings.

 

Chapter 2 starts the way it means to go on. It leads with s 34 which reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

Chapter 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a victim, where the various forms of abusive situation in ss 34-36 apply:

 

(4) If the court decides that it is necessary in the interests of justice for the witness to be [cross-examined other than by accused in person], the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Funding of help for the complainant: legal aid and Human Rights Act 1998 factors

 

Sir James’s 30 December 2016 statement continues: judges cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority doubts this. Much can be done by judges under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) (above) (a case involving evidence from a child witness) the family courts can act (italics added):

 

[28] There are things that the [family] court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

If B’s cross-examination genuinely ‘diminishes’ (see YJCEA 1999 s 16) A’s evidence and denies her a fair trial, her European Convention 1950 Art 6(1) rights are engaged. If legal aid is not available (ie the case is outside LASPOA 2012 Sch 1 paras 11-13 (domestic violence etc)), A should apply for exceptional case funding (LASPOA 2012 s10(3); R (Gudanaviciene) v [LAA] [2014] EWCA Civ 1622). Resources questions can be addressed under the present law, whatever Sir James and Truss’s review say.

 

Common law and a fair trial

 

Witness/party protection and fair trial rights depend on:

 

  • Special measures (equivalent to YJCEA 1999 ss23-28 and per Re W [28] (above)) applicable in family proceedings; and
  • A has a right to a fair trial; and to give evidence of a quality which is not ‘diminished’ (akin to YJCEA 1999 s16).

 

If the above is right A must be protected by special measures such as a ‘s 38(4)’ equivalent advocate: is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged, and LASPOA 2012 s 10(3) may apply. This article argues that protection for A can be funded – now – from an existing legal aid certificate (Sch 1 paras 11-13) and pro-active common law case management. And, it must be stressed: this is not a plea for Presidential ‘practice guidance’ or a ‘tool-kit’. It is a straight-forward urging – with Lady Hale’s Re W words in mind – to a High Court judge to order appointment to be funded from a civil legal services certificate (the that judge is willing to find it within his/her inherent jurisdiction). It is a straight question of whether the common law is willing to move in that direction.

 

If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ (within the terms of YJCEA 1999 s 16), and if a fair trial is thereby threatened, European Convention 1950 Art 6(1) is engaged. LASPOA 2012 s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s 38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

 

Law reform and public funding: the court appointed advocate

 

Finally, what about statute law reform? It will be assumed, first, that s 31G(6) does what it is said to do above, but common law clarity would be helpful.

 

This leaves the court-appointed advocate, the funding of that advocate and amendments to the rules to cover that. For example, drawing directly on YJCEA 1999 ss 34, 38(4) and 40 amendments to Family Law Act 1996 along the lines of the following could be passed in Parliament:

 

  • In the circumstances set out in paragraph (2) no person (B) who is the subject of an application under this Act may in any family proceedings cross-examine in person a party (A) to those proceedings who is the complainant in connection
  1. with that application; or
  2. in any other proceedings in which the allegations the subject of the application arise [ie to cover issues also in eg contact proceedings].

 

  • The circumstances referred to in paragraph (1) are that A has made an application under this Act and has requested the judge that an appointment be made as at paragraph (3) below.

 

  • If application is made under paragraph (2) for A to be cross-examined other than by B the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

  • The person appointed at paragraph (3) is not responsible to B

 

  • To cover the proper fee or costs of a legal representative appointed under Family Law Act 1996 s ## [ie (3) above] (respondent’s representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his or her appointment [shall be met from public funds].

 

This will need tightening up a lot; but it represents a start….