Release of court material

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Non-party claim for court material in Court of Protection

 

The high point of open justice litigation from last year is the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where Mr Dring, on behalf of asbestosis victims (not parties to the litigation), applied for release of court documents (for more commentary on the Supreme Court decision see here). The case concerned asbestos and which had been settled (ie there was no formal judgment). This post looks at a case in the Court of Protection (Re Z [2019] EWCOP 55 (20 December 2019), Morgan J) which explains and develops the Cape Intermediate v Dring principles in another civil proceedings jurisdiction.

 

In Dring, a High Court master had made an extensive order for release of court material in relation to Mr Dring’s application. The Court of Appeal narrowed this order; and against cross appeals by both parties the Supreme Court upheld the appeal order. The position defined by the Supreme Court applies to release of court materials from all forms of court proceedings (civil, family, criminal etc) (as Morgan J emphasises in the Re Z [2019] EWCOP 55 (20 December 2019) considered in this post).

 

The Supreme Court examined to what extent can any court under CPR 1998 r 5.4C (or principles derived from that rule in non-CPR 1998 jurisdictions: see eg Court of Protection Rules 2017 r 5.9) direct release of court material to a non-party; or can do so under the court’s inherent jurisdiction. Giving further Supreme Court impetus to principles discussed in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 it was held in Cape Intermediate v Dring that the following material can be released by order of a court:

 

  • skeleton arguments and other written submissions (Cape Intermediate in CA at [69]; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984);
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports, but not exhibits to these; and
  • any other document which it is necessary for the court, in its inherent jurisdiction, to release to comply with the open justice principle.

 

The significance of this for family lawyers is that the Supreme Court emphasised that these principles apply to all proceedings regulated by the common law, which includes family proceedings. Certain redactions and anonymisation – for example children’s, and maybe certain parties’, names – but application can still be made within the terms of Cape Intermediate v Dring.

 

Open justice and the Court of Protection

 

Cape Intermediate v Dring was considered fully in Re Z [2019] EWCOP 55 (above). On uncontested medical evidence, Morgan J held that Z lacked capacity to manage his property and financial affairs. His wife, brother and daughters had been involved in his Court of Protection proceedings and consented to the remainder of the order. Part of this (see [1](vi)) dealt with four declarations: (1) as to terms agreed for contact between Z and his brother and (2) and three, by consent, in relation to certain lasting powers of attorney in relation to Z. The judge explained that, when he made these declarations, by consent, ‘I had to consider, and I did consider, that it was proper for the court to make declarations by consent’ (at [1](vii)). This is relevant to his ‘judicial decision’ (see below).

 

Z’s son, JK, had not taken direct part in the proceedings (of his own choice; though his sisters had). After conclusion of the case, he wanted to have released certain material from the Court of Protection file which had been before the judge when he made his order. His application was refused. The judge considered that he had not proved sufficient grounds to justify an order ([73]).

 

In doing so, Morgan J carefully applied open justice principles as explained, for example, in Guardian v Westminster (above) and, seven years later, affirmed in the Supreme Court in Cape Intermediate v Dring (above). He was conscious that what he said was an important working out of the Cape Intermediate v Dring principles and gave judgment in open court accordingly. The principles he considered and the conclusions he reached would apply equally should a similar situation arise in proceedings in the family courts.

 

‘A judicial decision’

 

In Cape Intermediate v Dring there was no judgment, still less any order. In Re Z there was no contested hearing at all; but a full judgment on JK’s application (on which this post is based). That said, aspects of the case involved, in part, a decision-making process for the court. This was critical to his decision, as Morgan J explained:

 

[67] … The open justice principle is engaged in relation to those parts of the order which involved a judicial decision. The declaration as to the capacity of Z involved a judicial decision. As regards the declarations by consent, there was an element of judicial decision making involved but there was not a judicial decision in relation to the underlying dispute about the powers of attorney, because the parties had settled that dispute. Accordingly, in relation to the substantial body of evidence which related to that dispute, the open justice principle is not engaged; however, I have power to allow JK to have access to that material if there are strong grounds for holding that it is in the interests of justice to allow him to have access. As regards the remainder of the material which was provided to the court in relation to matters which were settled and which were the subject of other parts of the order of 26 November 2018, the open justice principle is not engaged but, as before, I have power to allow JK to have access to that material if there are strong grounds for holding that it is in the interests of justice to allow him to have access.

 

Morgan J summarised the scope of the open justice principle (at [19]) as applied here and as set out in Cape Intermediate v Dring. In his view this included:

 

  • Cape affirms that the open justice principle applies ‘to all courts and tribunals exercising the judicial power of the state’; and it therefore applied to the Court of Protection (para (i));
  • The court in question decides ‘what the principle requires in terms of access to documents or other information placed before the court’ ((ii));
  • The principle has two principal purposes ((iv)-(vi)):
  • to enable public scrutiny of the way in which courts decide cases; this is in order to hold the judges to account for their decisions and to enable the public to have confidence in them; and
  • to enable the public to understand how the justice system works and how decisions are taken; for this purpose, the public have to be in a position to understand the issues and the evidence adduced; the public need to have access to written material and should not be confined to what is expressed orally in court;
  • An applicant seeking access has no right to be granted access, save to the extent that the rules confer such a right ((viii)). A person seeking access must show
  • a legitimate interest in doing so ((xi)); and
  • must explain why granting him access will advance the open justice principle;
  • Relevant considerations for the court include the purpose of the open justice principle and the potential value of the information in question in advancing that purpose; balanced by any perceived ‘risk of harm to the judicial process or the legitimate interests of others’ ((xii)-(xiii));
  • The applicant will be expected to pay the costs of granting access ((xvii));

 

And Morgan J concludes his list (at (xviii)) by quoting Lady Hale in Cape Intermediate v Dring:

 

[47] …. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.

 

The decision of the court on release of material, even though there had not been contested proceedings, therefor turned on the element of judicial decision-making. There had been certain judicial decisions: for instance as to whether (on the basis of medical evidence) there should be any finding on capacity at all; and then whether the declarations in the order should be made.

 

On that basis and of the principles in Cape Intermediate v Dring summarised above, Morgan J rejected JK’s applications both under Court of Protection Rules 2017 r 5.9 (on analogy with Civil Procedure Rules 1998 r 5.4C). He found that JK had not done enough to establish that in this case the open justice principle went far enough to justify release.

Judge’s subservience to Parliament and the government

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High court’s powers subject to decisions of another public body

 

The Conservative manifesto caused entirely understandable anxiety amongst many human rights lawyers at its threats to consider reform of judicial review and Human Rights Act 1998; and similar threats are expected in today’s Queen’s speech. From a source on the right wing of the Tory party legislature wrecking is to be expected. I cannot be complacent, but I do remind would-be reformers to bear in mind – however they may threaten as bad losers from the Miller litigation – that there are already many areas of law where judges recognise their subservience to Parliament’s will. In my case examples come from family law; but they are essentially from administrative law (ie judicial review) areas.

 

In family – and other civil – courts judges are already restricted by administrative law constraints. This applies, for example, where local authority children’s or housing departments are concerned; or where Legal Aid Agency, Home Office and Child Maintenance Service are involved in families’ litigation. And of course, the embargo on child periodical payments imposed by Child Support Act 1991 s 8 is one of the better known – and least subtle – of Parliament’s limitation on family courts.

 

Limitations on wardship and local authority care of children

 

In Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 and the earlier A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948 family members attempted to challenge operation of a care order (when procedure and legal aid rules were very different than post-CA 1989) by wardship. Lord Scarman spoke emphatically (at 797):

 

… The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority…. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.

 

The importance of the A v Liverpool principle survives today. In Re H (Children) [2018] EWFC 61, [2019] 1 FLR 792 Sir James Munby (then as a High Court judge), identified the principle in a case where there was delay in prosecution of parents in parallel care and criminal proceedings.

 

[20] The starting point is the fundamental point of principle articulated and elaborated in a well-known series of cases in the House of Lords and, more recently, the Supreme Court: A v Liverpool City Council [1982] AC 363, In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413…. That principle, as explained by Lord Scarman [in the passage cited above].

 

The same can apply in housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 a family court had tried to use a shared residence order to put pressure on a housing authority to provide housing for both parents. The House of Lords said this was not permissible. The existence of a shared residence order was a relevant factor, but it was not determinative.

 

The point came back in the family courts more recently in F v M & Anor [2017] EWHC 949 (Fam), [2018] 2 WLR 178, [2018] 1 FLR 1217 where in a child arrangements order Hayden J was considering a decision on asylum made by the Secretary of State for the Home Department (the ‘Home Office’). He explained the mother’s position in this country as follows, and his powers to differ – if he sought to do so – from the decisions of officials within the Home Office. He explained this (by quotation from Lord Scarman in Re W (above)) as follows:

 

[41] … The determination of the refugee status of any adult or child falls entirely within “an area entrusted by Parliament to a particular public authority”. In this case the public authority is the [Home Office].

 

Funding of family proceedings

 

Can the court compel the state or a local authority to fund family proceedings? Finance questions arise, broadly, in three ways:

 

  1. Funding – How proceedings are paid for is generally a private issue between a party and his or her lawyer; but it may involve legal aid or a claim against the other spouse in matrimonial proceedings (Matrimonial Causes Act 1973 s 22ZA (legal services order)).
  2. Expenses – The court may be asked to adjudicate between parties as to who is to pay expenses (eg for an expert’s report: JG v Lord Chancellor and ors [2014] EWCA Civ 656, [2014] 2 FLR 1218).
  3. Costs – Costs is what is paid as between parties by one to the other by court order.

 

In HB v A Local Authority & Anor (Wardship – Costs Funding Order) [2017] EWHC 524 (Fam), [2018] 1 FLR 538 MacDonald J considered whether he had power, in the inherent jurisdiction of the High Court, to order a local authority to pay a mother’s legal expenses where it had warded two children where their mother was believed to be planning to go to Islamic State). Because it was wardship the mother outside the automatic legal aid scheme for CA 1989 Pt 4; and she was not financially eligible. Accordingly she applied under the inherent jurisdiction of the High Court judge for a costs funding order against the local authority requiring it to fund her legal advice and representation.

 

MacDonald J concluded:

 

[94] I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

He buttressed what he had said by reference also to Re K & H (Children) [2015] EWCA Civ 543, [2016] 1 FLR 754 (also Re K [2015] 1 WLR 3801):

 

[97] Those well-established principles [as to state funding], as articulated by Lord Dyson MR in Re K [2015] 1 WLR 3801, are clear. Authority for public expenditure requires clear statutory authority, which authority must itself be in clear, express and unambiguous language. Within this context, a general power or duty cannot be used to circumvent a clear statutory code. Where Parliament has made detailed provisions as to how certain statutory functions in respect of legal funding are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code.

 

MacDonald J, by reference to Lord Dyson MR, stresses the point – there in relation to legal aid: that once Parliament has laid the ground for an administrative body to deal with an issue then the court cannot, in any inherent jurisdiction, seek to challenge the role of the administrator, save by properly issued and pleaded judicial review application; but that is a separate forensic question.

 

David Burrows

19 December 2019

 

Family courts appeals and open justice

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Moves towards openness in family proceedings

 

October 2019 saw the introduction into family proceedings of two pieces of sub-subsidiary legislation both devoted to promoting family law’s faltering steps towards open justice:

 

  • First – and of slightly greater precedent value – was Practice Direction 30B: Appeals: Transparency (PD30B) (effective from 1 October 2019) which is designed to support last December’s amendment FPR 2010 r 30.12A (family appeals courts powers to order a hearing in public); and
  • Second was the President’s guidance as to reporting in the family courts, 3 October 2019.

 

PD30B states that ‘ordinarily’ High Court family appeals will be in open court (para 2); and provides for the judgement below and each represented party’s skeleton argument (redacted and anonymised as permitted) to be provided to accredited media representatives (para 3). The President’s guidance deals with applications by ‘reporters’ (media representatives and lawyer bloggers: Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f) and (ff)) who want to vary publication restrictions to which they are subject in family courts (whether statutory or by court order).

 

I have written about President’s guidance already here. This post will concentrate on PD30B. In December 2018 family court judges became able to order that appeals ‘be in public’ (FPR 2010 r 30.12A). Following from this, PD30B very modestly develops openness in family proceedings. Most appeals will be in the High Court; but for the few before a circuit judge (eg from district judges or magistrates) the practice direction does not apply. It applies only to High Court appeals (para 1.2). Although r 27.11(2) has been extended to include ‘legal bloggers’ (at r 27.11(ff) by FPR 2010 Practice Direction 36J), PD30B does not apply to them.

 

Some appeals go from the family courts direct to the Court of Appeal (Civil Procedure Rules 1998 Pt 52), some go to a judge sitting in the appropriate level of family court (ie High Court judge or circuit judge in the Family Court) under FPR 2010 Pt 30. There is a table at Practice Direction 39A: Appeals para 2.1 which provides the ‘routes of appeal’ for each level of decision-maker; or for appeals from family courts direct to the Court of Appeal.

 

Limited authority of practice directions and President’s Guidance

 

But, depending on in what forum – open court or private – family proceedings appeals are heard: (1) what can be reported; (2) to what extent are parties, witnesses and others anonymous; and (3) what documents can be seen by non-parties (such as media and legal bloggers) before during or after the hearing? Each of these three questions raises substantial subjects. This post can only touch on each of them as they arise in relation to PD30B.

 

A word of warning is necessary before PD30B is reviewed: a practice direction may contain guidance on practice (and see here); but if it contains statements of law which are wrong, the practice direction has no authority. Lord Wilson in the Supreme Court recently recalled this in NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962:

 

[38] The FPR are made pursuant to section 75(1) of the 2003 Act and so have legislative force. But practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] 1 WLR 2657 (at [48]):

“a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

 

This is the barometer against which the effectiveness of this practice direction (and of the President’s guidance on family courts reporting) must be tested. In an area of law – open justice – so dependent for its definition on the common law, it is against the common law which any questions of the authority of PB30B and of the President’s guidance will be tested (as was the case in NY to test the practice direction in question there: ie Practice Direction 12D on wardship and the inherent jurisdiction).

 

Hearings of appeals: ‘ordinarily’ in open court

 

Court of Appeal family appeals are heard in open court. Save in children proceedings the parties, other than children, are named (with only very rare exceptions: see discussion in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426). In family proceedings the general rule is said to be that family proceedings hearings are in private (r 27.10). Hearings of appeals are family proceedings and are covered by r 27.10. Subject to that, however, r 30.12A says that an appeal court can ‘order’ that hearings, or part of them, be ‘in public’ (r 30.12A(2)(a) and (b)); and the court can exclude anyone from the hearing or part of it (r 30.12A(2)(c)).

 

Publication of the names of certain individuals (including any child involved in the case) and other information about the case can be restricted by the court (r 30.12A(3)(a)-(d)). A practice direction, said the new rule, could provide further details (r 30.12A(4)). So what does PD30B say alongside r 30.12A?

 

The practice direction applies only to High Court judge appeals, says para 1.2. That is it does not apply to appeals heard by circuit judges (eg against decisions of district judges and magistrates). Put another way, the practice direction does not cover all appeals in the way that r 30.12A does. Whether the rule-makers meant to restrict its operation in this way is not possible to tell; but for the present that is the position (ie PD30B does not apply to the appeals before circuit judges listed in PD30A para 2.1 (2nd row)). In itself, that raises the nice technical point: just because the practice direction applies only to High Court judges, can other appellate judges (ie circuit judges) apply similar rules? And that means asking if the common law would permit circuit judges to proceed as the practice direction permits? Probably yes, but that is a subject for another day…

 

Common law and hearings in family courts

 

PD30B para 2.1 says that ‘ordinarily’ High Court judges will order that appeal hearings be in public. The practice direction continues (at para 2.3) that appeals in financial relief hearings ‘where no minor children are involved’ will not normally be subject to any restrictions of the type mention in r 30.12A(3) (eg as to the identity of a party or of witnesses). If restriction orders are to be made in any appeals, the court is expected to take into account a number of factors listed in para 2.5: for example, such things as protection of a child or of others involved in the proceedings; whether the hearing below was dealt with in private; and whether any disruption from the public is expected if the appeal is heard in public.

 

On the subjects raised by para 2 – open court hearings and restriction orders – the common law is rich with legal principle, starting with Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and explained (mostly in relation to release of documents: touched on by PD30B para 3, considered below). Appeals should be in open court; and, says para 2.3, the court will not ‘normally impose restrictions’ on publication of information in financial relief proceedings.

 

Yes, restrict in relation to children proceedings, I can see that. But surely there should be no restrictions on publication of information in other family proceedings (what about Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 (Ms Clibbery published papers from her occupation order proceedings), or some of the recent forced marriage protection order cases?)?

 

Appeals: release of court material

 

PD30B para 3 specifically sets out what court material must – subject to court direction – be released to law reporters and accredited media representatives (ie who can attend under FPR 2010 r 27.11(2)(f)). This and what court material may be released to non-parties, is a wide subject: see eg Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 considered at. This post – as ever – deals only with the practice direction and family proceedings appeals; but it must be recalled that the common law may permit much wider release of court material, beyond the two documents referred to in the practice direction.

 

Under PD30B paras 3.1 and 3.3 the court usher, or other court official, must be provided with two documents on the day of the hearing:

 

  • By the court itself, ‘two copies’ of the judgment under appeal
  • By each party’s legal representative, two additional copies of their skeleton argument for the hearing

 

The usher, or court official, must provide a copy of each of these, one to ‘an accredited law reporter’ and one copy of each to ‘an accredited media reporter’ if this is asked for (there is no provision for ‘legal bloggers’ in this. Of those listed for attendance at court by r 27.11(2) only media representatives (r 27.11(2)(f) are covered). These documents can be taken away, but are only to be used for reporting the proceedings (para 3.4). Reporting will always be subject to limitations on publication for children and other proceedings in Administration of Justice Act 1960 s 12(1) and for ‘indecent matter’ under Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(a)).

 

Para 3.5 says that a party to the case can apply to lift or vary ‘obligations’ imposed by any order (and this is likely to be an application on the opposite side of the coin for press variation of restrictions set out in the President’s guidance of 3 October 2019. The practice direction says a party can apply ‘orally… at the commencement of the hearing’; though if it is left to the start of the hearing the information which a party may want to restrict from being read will be out, if the practice direction procedures are followed. Para 3.6 sets out the factors (very similar to CPR 1998 r 39.2(3) which says when a civil proceedings hearing may be in private: ‘interests of justice’, protection of a child and ‘the nature… of any confidential material’ in the court document).

 

Anonymisation

 

Again, anonymisation is a very wide subject (see recently AAA (and others) -v- Rakoff (and others) [2019] EWHC 2525 (QB), Nicklin J and ##here##). Save that it says the court can order that a skeleton argument can be anonymised or provided in redacted form (para 3.6, conclusion) the practice direction says nothing on whether the parties are to be anonymous. If a hearing is in open court it would normally be expected that the parties’ names (other than of children as parties or involved in the proceedings) be published.

 

If a party wants their names not to be published they would be best advised to apply formally in advance of the appeal, as they must already under case law in the Court of Appeal (Norman v Norman (above)). There are no clear rules in family cases (except for children) for anonymisation (eg finance cases or in relation to domestic abuse: of the financial relief cases reported this year, a majority – eleven out of fifteen – have named the parties.)

 

Limited court material: to make sense of the proceedings

 

PD30B provides a move – already available in the Court of Appeal: Civil Procedure Rules 1998 PD52C para 33 for providing skeleton arguments in the case for court reporters – towards providing limited court material to help those allowed to attend court to make sense of the proceedings (as considered eg by Toulson LJ in Guardian v Westminster). The next stage is to open up (anonymised and redacted as need be) documents in family proceedings; and thus to help those who attend cases and want, at the hearing or afterwards, to know more of what is going on.

 

The practice direction does not apply to legal bloggers. An appeal judge may be perfectly happy for one of the ‘two additional copies’ provided to the usher to be considered also by a legal blogger. But supposing a party – say a parent or his or her adviser in care proceedings – objects? Such a party would be entitled to insist that a legal blogger apply to the judge for an order for release of the court material provided for in PD30B.

 

There is no obvious logic for having one rule for the media representative entitled to attend court, but a different rule for the legal blogger whilst the blogger pilot scheme (PD36J) remains in operation. That appears to be the position as PD30B stands; but surely the common law would permit a wider approach aligned with PD36J? Is it going to be necessary to make formal application under the President’s guidance?

Open justice: when is secrecy lawful in family proceedings? – Part 1

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Can court rules change substantive law?

 

What substantive law (ie common law and statute law) defines the English and Welsh system of open justice? And can any family courts court rule change open justice principles in relation to family proceedings?

 

The common law (judge-made law) can only be changed (1) where a statute does so; (2) where a statute says delegated legislation (such as Family Procedure Rules 2010 (FPR 2010)) can do so; or (3) a judge (having full regard to the rules of precedent) reframes the terms of the common law. For a rule to change (as opposed to summarise: see Civil Procedure Rules 1998 (CPR 1998) r 39.2 (below)) the law there must be statute law which permits it (as in the limited circumstances defined by Courts Act 2003 ss 75-76 for FPR 2010 (see later)).

 

Put another way: it is essential that substantive law is clear first by anyone who wants to define the law; and that that law and its effectiveness is not muddled up with what delegated legislation says and if it conflict (eg in this case, with what is said in court rules). For substantive law, much of what follows is common law. Because it must be deduced from case law, that is not always easy; but in most respects the common law open justice principle is relatively easy to deduce from such cases as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (considered further below).

 

The question which started this this article was: should domestic abuse hearings (mostly under Family Law Act 1996 Part 4 and 4A) be in open court. On common law principles, and subject to any limitations summarised in the law as defined by CPR 1998 r 39.2(3), eg in relation to rights of children), hearings under Part 4. Many other domestic abuse hearings must surely be in open court. The same charges against an alleged abuser would be heard in open court in criminal proceedings (see my ‘Non-molestation and open court hearings’ (27 December 2017 ). So, subject to common law privacy exceptions, can closed hearings of domestic abuse cases be justified by the family proceedings courts administration?

 

‘Transparency’ and the family courts

 

Hearings of domestic abuse proceedings goes to the question of what family lawyers euphemistically call ‘transparency’ (as open court principles in the family courts were euphemistically described by the then President of the Family Division, Sir James Munby P, in Practice Guidance 16 January 2014: Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733). ‘Transparency’ in family hearing relates to its opposite, namely privacy of hearings for family cases.

 

This series will look only at hearings and publication of court documents using FLA 1996 Pt as is underlay. The series will look at the following topics:

 

  • What does the law say about open court principles and about the powers of the court to permit publicity for court material?
  • To what extent is what is said about open justice in FPR 2010 within the powers of the rule-makers (Family Procedure Rules Committee; FPRC)?
  • If an individual (a journalist (say), or anyone who might want to go into court: if it’s open court they don’t have to justify themselves) believes they have been wrongly excluded from court or refused permission to publish information, what can they do, and in which court.

 

 

(1)        OPEN JUSTICE AND THE LAW

 

Open justice: a common law principle

 

Substantive law is made up of common law and statute law. In Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 Lady Hale in the Supreme Court summarised the extent to which rules (and this includes FPR 2010) could alter substantive law:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

A similar point was made in the Court of Appeal in by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75. A barrister had tried to urge that court to say a new rule ‘prevailed over any previous jurisprudence that might be argued to limit the jurisdiction’ under that rule. The new rule should be ‘reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind’ as Buxton LJ described the submission. He replied:

 

[8] That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628….

 

The concept of open justice is a common law principle. This was asserted (in words since approved by the Supreme Court in eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558 and Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (above):

 

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

Open justice, privacy and statute law

 

The leading case still cited almost daily in all courts (criminal and civil, family and administrative tribunals) is still Scott & Anor v Scott (above) where (at 445) Earl Loreburn said:

 

The inveterate rule is that justice shall be administered in open Court. I do not speak of the parental jurisdiction regarding lunatics or wards of Court,… I speak of the trial of actions including petitions for divorce or nullity in the High Court. To this rule of publicity there are exceptions, and we must see whether any principle can be deduced from the cases in which the exception has been allowed. It has been held that when the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed.

 

This approach – with additions, such as for questions of national security and for confidential information generally – defines the law still more than 100 years later. And, it must be recalled, Scott was a family case, decided at a time when no distinction between rules for civil proceedings and for family law (proceedings now covered by FPR 2010) would have been recognised by judges.

 

Alongside all this FPR 2010 r 27.10 says boldly:

 

27.10 Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise.

(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.

 

And save for Holman J (see eg Fields v Fields [2015] EWHC 1670 (Fam), [2016] 1 FLR 1186) most family lawyers go along with what the rule says. The y do not obviously reflect on the extent to which the rule may conflict with the law. But to what extent is the rule itself not lawful?

 

Law summarised by Civil Procedure Rules 1998: open justice

 

In 2019 the law in relation to exceptions to the open justice principle can best be seen summarised in CPR 1998 r 39.2(3) (which is in almost identical terms to FPR 2010 r 7.16(3) for open court defended divorces). Under the heading ‘General rule – hearing to be in public’, r 39.2(1) states the common law default position: ‘(1) The general rule is that a hearing is to be in public’; and ‘hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3)’.

 

If the court is contemplating ordering a private hearing it ‘must consider any duty to protect or have regard to a right to freedom of expression which may be affected’ (r 39.2(2); a factor protected by press rights under Human Rights Act 1998 s 12).

 

CPR 1998 r 39.2 then continues to list the factors which may permit the court to order that a hearing be in private (parts of which are clearly predicted in Scott v Scott (above)):

 

(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;… or

(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

 

What bits of this list would family lawyers object to as a definition for when family hearings should be in private (with a modernised Administration of Justice Act 1960 s 12(1) to back any breaches of privacy).

 

CPR 1998 r 39.2(3) and Clibbery v Allan

 

The content of the list in r 39.3(3) sets out the common law (as do many of the provisions on disclosure in CPR 1998 Part 31, which must be imported into family proceedings given the poverty of rule-making in the parallel FPR 2010 Part 21). I would expect any family judge to follow it if application were made (eg in a committal application or a domestic abuse hearing). The extent of the rule (in contrast to Administration of Justice Act 1960 s 12(1)) was considered by Dame Elizabeth Butler-Sloss P in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at eg [24]-[27] and [68].

 

That case deals with the common law on open court principles and release of documents in relation to Family Law Act 1996 Part 4 (FLA 1996 Pt 4; UK’s present domestic abuse legislation). It explains the common law and – in relation to publicity – it conflicts with Mostyn J’s assertion of what r 29.12 was said to mean. It is very much still good law as Mostyn J himself makes clear (see his citations at [7]-[11]) in Appleton v Gallagher (to be considered in the next part).

 

Clibbery v Allan concerned proceedings where a circuit judge had refused to make an occupation order injunction (under FLA 1996 Pt 4) on Ms Clibbery’s application. After the hearing she passed some of the documents in the case to the Daily Mail. Mr Allan asked for a restraint injunction to prevent such publication by Ms Clibbery or by the newspaper. An interim injunction was granted. On its return it was refused by Munby J on the return date (Clibbery v Allan [2001] 2 FLR 819). The Court of Appeal decision turned on the extent to which proceedings such as these were private, and to what extent confidentiality of documents therefore applied.

 

The issue for the Court of Appeal was: were the proceedings under Family Law Act 1996 Pt 4 in ‘private’ (as they defined it: and see Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056); and if they were, could there be subsequent publication or other release of documents, as Ms Clibbery had done. Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keene LJJ agreed) held that publication by Ms Clibbery in this way was lawful. Mr Allan’s interim injunction was discharged.

 

These findings conflict with the restrictions on the open court principle and publicity of family proceedings documents set out in FPR 2010 rr 27.10 and 29.12; and it represents the common law in relation to LFA 1996 Pt 4 hearings, not what is said in the rules, so far as they do conflict.

 

The common law and family proceedings

 

For now it will be assumed that CPR 1998 r 39.2(3) summarises the circumstances in which any civil proceedings (including family proceedings) may, at common law, may be considered for hearing in private (ie in secret and to the exclusion of the public).

 

Using the list in r 39.2, to what extent is what is said about open justice in FPR 2010 within the powers of FPRC. And how does an individual enforce any right they have to be in court? These topics will be dealt with in the following parts of this series.

Lay representation in civil proceedings

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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?

 

Parallel

 

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

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‘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?