On-line family law, discussion continues

Hello Roger

 

Many thanks for your prompt reply. I do understand your wish to increase understanding of changes which are happening around lawyers (and our clients), in terms of technology.

 

I would like to deal with the changes by saying that they provide a real chance to look at family law procedure afresh.

 

The end result which the process must aim to produce is a fair determination for the parties. How best can this be achieved? It must use a combination of existing substantive law and rights in parallel with technology. Law is the master/mistress. Technology is the willing servant. If procedure, as I believe it is, is the means to achieve justice, how far can if work with technology and clarify the process.

 

In your reply you mention a scheme in California derived from Canada. This seemed to you:

 

‘…a good example of how technology is international even if law is irredeemably national. One of the most interesting parts of the project was a focus on the emotional needs of the children involved rather than those of the parties to the litigation – who would generally be their parents….’

 

Yes, but maybe legal principles are not altogether ‘irremediably national’. For example, we could agree that welfare of children ideas can be international (see for example United Nations Convention on the Rights of the Child 1989: noticed hardly at all, it must be said, by English judges). A right to a fair is increasingly international; though you will know more than me of the extent to which it is observed in practice. If these concepts can be part of the bundle of rights which are there in a group as the outcome of justice, then technology and procedure can work towards that.

 

English family breakdown law has four components: children (where they are still dependant); money (income and capital); domestic abuse; and status (if a couple are married or in a civil partnership). These will be replicated in various ways in most other jurisdictions, with money and divorce varying most in all probability. In English law divorce (save where defended) is already an administrative arrangement, one the decision is taken, and is ripe for on-line disposal. Money proceedings may be easy for those with a more modest income – and no doubt crying out for help from a simpler procedure where lawyers are still very expensive. Save for the end result welfare test, child law procedure presents greater challenges; as does – perhaps – domestic abuse.

 

The demand is to redraft a fair set of procedural rules which (a) lay readers can understand and (b) which will work with technology, as it develops. And throughout it must be done in a way which is not designed for geeks (techno enthusiast and lawyers). The comfortable level of understanding of the lay party to a family breakdown must always be kept in mind.

 

The emotional needs of children are only part of a legal process where they are the subject of proceedings; but that process, where it is needed to, must recognise their needs and rights (see eg Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24: child’s right to be heard). That will be an important challenge for any on-line scheme (save that most children are much more adept on-line than most of their parents).

 

As a family lawyer I see a scheme which must start from the needs and rights of parties which it is designed to protect. Children, and their welfare, is the dimension in family proceedings which other litigation (‘dispute resolution’) does not have. The generic requirements of cases need to be defined; and then a procedure – with technology in mind – can be worked out from there. Many existing rules will be adapted, or incorporated pretty much in their present form; though in modern language, where need be. And all will be developed alongside new technology….

 

A field I know quite a lot about in law, especially in family law, is disclosure. Too many documents are exchanged. This is where proportionality comes in. If the rules are more clear for family proceedings than they are now, surely this is an area – whatever the complexity of family finances or not – which cries out for an IT response? And this response with well-drafted new rules and proper attention to confidentiality (of children and their parents) might be one place to start?

Roger Smith: on-line family law – a reply

Hello, David,
I am more than happy to debate the impact of new technology with you. I have been an admirer of your work for many years. Part of the whole point of the Legal Education Foundation’s initiative in the field of technology is to increase discussion of developments.
Let me make an opening point. The nub of my New Law Journal article was not really a focus on automation. My concern is to increase understanding of what is happening at a time when the provision and delivery of legal services is changing very fast and to indicate best practice and interesting experimentation around the world. Unlike Richard Susskind, I am not an advocate of the brave new world that is approaching: I am more of an analyst – with perhaps an exception to which I will return.
The legal world is changing under the pressure of a number of forces which are different though linked in their relationship to technology. The main drive for automation comes through the deployment of artificial intelligence. The main users are the large corporate firms who can afford the initial investment. Their aim is to cut the cost of processing large volumes of documents for the purposes of commercial transactions and litigations. The consequence will be the threatening of large numbers of jobs and potentially a restructuring of the ‘top end’ of the legal profession. There will be less need for trainees, solicitors, paralegals and outhousing if machines replace people in document review. And they will. That is where I think that if a job is predictable then it will be automatable.
“HIgh Street’ practice will be affected in a rather different way. Traditional, geographical based, relatively small firms will be challenged (though not necessarily over-run) by those which are virtual – maybe based, for example, as you are in France and covering the whole country – or under a national corporate brand like Co-operative Legal Services or Slater and Gordon. And note that word ‘like’. I know that both these businesses face specific financial problems. I don’t think that these are integral to their business model. I don’t think you can take a view about whether this is a good or bad thing. It just is. And practitioners will have to take their own response to what is happening.
A different force for change will be the headlong rush by the Lord Chancellor to introduce online courts at breakneck speed. You might think that this likely to be too fast; at a speed which precludes proper piloting; in a manner which is likely to pay no heed to the need for personal assistance highlighted in I, Daniel Blake; and fuelled too much by a desire to flog off valuable inner city real estate. That certainly is what I have repeatedly written. The jurisdiction which is in the advance in this field is British Columbia and it has been notably more humble, thoughtful and gradual in the implementation of its Civil Resolution Tribunal.
Linked to the proposed introduction of matrimonial on-line courts have been the cuts to matrimonial legal aid. These were outrageous and have manifestly left a whole constituency that even the government feels uneasy about drifting without assistance at a time of emotional turmoil. Their position as a whole will not be helped all that much by long overdue easing of definitions of domestic violence. In the light of these cuts, I am interested in how this gap might be met by technology and I have been impressed by interactive websites like the Dutch Rechtwijzer which have tried to leverage the value of the net by directing information to individual circumstances rather than just using a wallpaper model of dissemination. There is a real need here. The proper answer may be reinstatement of legal aid. That ain’t going to happen. We can lament that: I do. But we have to see how we can improve the information and advice to those who have all too much need for it.
The thing that actually got my interest in the field was a presentation at a conference of how the Californian courts had collaborated with an NGO in Canada to produce information on family breakdown. The Families Change programme has now gone national in Canada. This seemed such a good example of how technology is international even if law is irredeemably national. One of the most interesting parts of the project was a focus on the emotional needs of the children involved  rather than those of the parties to the litigation – who would generally be their parents. This seems to me an example of technology allowing an expansion of engagement with the human consequences of legal action that is not usual in conventional legal practice. I am an enthusiast in terms of encouraging such a trend.
So, I have no brief for legal aid cuts or simplistic implementation of on-line courts. And certainly none for any reduction of standards in relation to the rule of law and the quality of court determination. I do think that technology is going to change our whole world. And law will not escape. And there will be good and bad effects. And we need to analyse which are which. And we need to engage in debate and discussion at a specific level about what can practically be done.
Best wishes

Innovation and an online family law sector

Open note to Roger Smith

 

Hello Roger

 

The nub of your article in New Law Journal 17 February 2017 seemed to be: ‘We are talking of automation of any element of a job which is predictable’. You were talking about automation of appropriate part of the legal process, and predicting job losses of between a third and a half in legal services just as in the motor industry.

 

My lap top is open, Roger (as you urge at the end of your article); but I am sure I am nowhere near your league for technological ability. That said, I am no Luddite. I have felt for years that procedural clarity and reform to achieve savings of costs should precede legal aid starvation; and that if clarification is not achieved – a slightly different point – then the rule of law is threatened. Yes, yes, yes, you say… OK, I’ll come back to earth; but the need for a rule of law in all this must be kept in mind.

 

In my own field a divorce on-line scheme has been introduced by Ministry of Justice (http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-36d-pilot-scheme-procedure-for-using-an-online-system-to-generate-applications-in-certain-proceedings-for-a-matrimonial-order; and for a discussion of it see https://dbfamilylaw.wordpress.com/2017/02/03/on-line-divorce-scheme-an-update/). That must be one of the most obvious fields for on-line efforts. Unless a divorce is defended there is no need for any exercise of a judicial mind (though even with that I cannot see how a client gets into the scheme – pilot or not – as things now stand). Access apart, a divorce on-line cannot be much of a challenge, for the Ministry of Justice; though my search for it on-line does not enable me to find it any longer. .

 

Let us look at child maintenance. Like income tax as an end, it is essentially a two-dimensional problem. Work out someone’s income; count up the dependent children; and then say what proportion the payer parent must pay. There are relatively few external factors. The Department of Work and Pensions are onto their fourth major reform of that idea over nearly 25 years; and still (if they are honest) I suspect the arrears are mounting. I accept that is as much an administration and an enforcement problem. Maybe online access to, and operation of, the scheme would help a lot; but on-line enthusiasts will see that – even for this two-dimensional issues – there are problems.

 

But, Roger (and while I think of it): you know what you are doing when you open your lap-top. Remember that there are still Daniel and Daniella Blakes out there who cannot – or like a very good classics PhD friend of mine, will not – access the internet. Will our brave new internet world impose that obligation on them? Will conscientious objection be recognised? Or is a right not to use the internet to be lost? Will all of us have to submit to the Big Brother surveillance which internet access makes inevitable? (I remain bewitched by its powers. I could not do my job without it. That doesn’t mean I would deny a person the right not to use it; any more than I would destroy your fountain pen.)

 

But back to my law subject: I entirely agree that we should simplify process. This must be so, and where legal proceedings are needed, where mediation has failed: for more on mediation etc online see Online Dispute Resolution for low value civil claims (February 2015) by the Online Dispute Resolution Advisory Group (of which you were a member: http://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf ; and see my comment on this at https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/).

 

If family litigation, say over money, has not been resolved by mediation, it must be easier to find a largely on-line scheme than the matrimonial finance process we have at present. Whilst, as every family lawyer will say, each family is different, there must be enough common features about most families with relatively straightforward finances to reduce initial – perhaps most – stages to a similar framework. This will cut out a lot of work now done needlessly (eg disclosure of unnecessary documents). Great expense to the parties on lawyers – or, with legal aid reduced, wear-and-tear on their lives to the parties themselves.

 

And once we think about it, I am sure – without disproportionate damage to the family law legal system – that lots of ideas can be developed; and this within a procedurally simplified family law on-line system.

 

Worth a chat?

 

David

Legal aid statutory charge and care proceedings

No application to family courts proceedings

 

Following on from HRA damages and legal aid: a Pyrrhic exercise?  a narrow question has arisen over whether the Family Court has power to award damages. More to the point: has the Family Court administration got power to permit issue of ‘civil proceedings’ under Human Rights Act 1998 (‘HRA’); and can family judges award damages?

 

These questions arise immediately where parents or children have been pursuing claims for HRA damages arising from local authority claims, often in relation to care proceedings in the family courts. In the above article I have expressed doubts as to whether this is correct. It is important because in some cases the Legal Aid Agency (‘LAA’) are simply mopping up damages received by parents or their children and setting it against the legal aid in the care proceedings. If they have been allowed to do this by children’s, or parents’, lawyers, I believe this to be unlawful; and if I am right, the LAA should pay the money back.

 

The issue arises from Human Rights Act 1998 (‘HRA’) s 8, as relevant for present purposes, says:

 

8 Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

 

Most people reading that would probably say that its ordinary English words mean that in the case of an ‘unlawful’ act (which refers back to maladministration by a public authority under HRA ss 6 and 7 under European Convention 1950) a court can make an appropriate order ‘within its powers’. If it chooses to make an order for damages the court so doing must have ‘power to award damages… in civil proceedings’ (s 8(2)).

 

At the time of the coming into operation of HRA a family law text-book Family Law and the Human Rights Act 1998 (Swindells et al, 1999) considered s 8(1) and (2) to mean:

 

2.20  A damages award can be made only by a court with jurisdiction to do so (HRA 1998 s 8(2)). As it is doubtful that family courts have such jurisdiction, if damages are sought the claim will have to be made in the civil courts.

 

6.70  … The family courts do not in any event have any power to make awards of damages even were they to be persuaded that Convention rights had been violated and damage suffered as a result.

 

I am not aware of any judge saying in terms that that was wrong; though a lot of HRA water has flowed under the bridge since then. I know of no family law case which deals with the meaning of s 8(2) (I have searched the FLR assisted search facility on HRA s 8).

 

Application in family proceedings

 

First, what proceedings can be issued in family courts? In the family courts the form of court proceedings is defined by Courts Act 2003 s 75, which takes you to Matrimonial and Family Proceedings Act 1984 and, eventually, you arrive at Senior Courts Act 1981 Sch 1 para 3. This defines the list of forms of proceedings – ‘family business’ – which can be issued in the courts under Family Procedure Rules 2010. There is no mention of Human Rights Act 1998 claims in Sch 1.

 

That is why, for example, you cannot claim a share in your (unmarried) partner’s property, if it is in his or her sole name (Trusts of Land and Appointment of Trustees Act 1996 s 14), or claim against your dead parent’s or spouse’s property (if they don’t leave you enough: Inheritance (Provision for Family and Dependants) Act 1975). All family lawyers know that: you have to issue ‘civil proceedings’ – that word again – under CPR 1998. And that is so even if, in the case of your partner’s property s/he is parent of your child, and you are making a claim for property for the child in FPR 2010 proceedings under Children Act 1989 Sch 1.

 

In short, just because it is a family matter – suing your grand-mother for specific performance of an agreement or making a claim against your boy-friend for property in his name – does not mean you can apply in the family courts if your case does not come within Sch 1. And it may be good practice form a legal aid point of view if your lawyer does not attempt to do so (see below).

 

Family courts are quite used to case managing cases – at least in theory – so that CPR 1998 (TOLATA proceedings) are dealt with alongside FPR 2010 proceedings (and see eg bankruptcy court and money proceedings: Arif v Zar and anor [2012] EWCA Civ 986). They can also manage care cases so that issues are split: threshold in care proceedings (CA 1989 s 31(2)) from welfare issues if the care threshold is achieved by the local authority applicant.

 

So why not split and case manage (as need be) the separate issues which arise on a FPR 2010 care case; and a HRA damages CPR 1998 ‘civil proceedings’ care case? The answer is, in my view: none at all. It follows the law (always a good idea for a judge to follow the law). And – a quite separate point – it is certainly good practice from the legal aid point of view (see separate article of Avoiding the legal aid statutory charge).

 

Order in family proceedings

 

It is said that Matrimonial and Family Proceedings Act 1984 s 31E helps. This provides, as relevant here:

 

31E Family court has High Court and county court powers

(1)   In any proceedings in the family court, the court may make any order –

(a)which could be made by the High Court if the proceedings were in the High Court, or

(b)which could be made by the county court if the proceedings were in the county court.

(2) In its application to a power of the High Court to issue a writ directed to an enforcement officer, subsection (1)(a) gives the family court power to issue a warrant, directed to an officer of the family court, containing provision corresponding to any that might be contained in the writ.

(3) Subsection (1) is subject to section 38(3) of the County Courts Act 1984.

 

Subsection (3) means that the Family Court, like the County Court, cannot make orders on an application for judicial review (which may prove relevant in a HRA context; but that is for another day).

 

MFPA 1984 s 31E is in a long line of legislation which endows lesser courts with the powers of higher (or, in this case, parallel) courts, as does County Courts Act 1984 s 38. Section 31E is based on s 38 (and see County Court Remedies Regulations 2014). Traditionally s 38 was relied on to enable county courts (including those then dealing with family proceedings) to make inherent jurisdiction orders (eg injunctions) which they did not have; and, for example, it was used to enable district judge’s to order that they should sign documents (Senior Courts Act 1981 s 39).

 

That is s 31E enables orders to be made at the conclusion of, or during the course of (interim orders), proceedings. It does not add to the jurisdiction defined by SCA 1981 Sch 1; for if it did, family lawyers would use family courts for any application (eg constructive trust, breach of contract and s 14 proceedings, as you can do in county courts); suing for damages for personal injuries (which county courts certainly have powers to order) and so on. Plainly this cannot happen. That would be massively to extend the jurisdiction under SCA 1981 Sch 1 which is not what Parliament envisaged.

 

‘Power to award damages… in civil proceedings’

 

So what does HRA s 8(2) and its reference to ‘civil proceedings’ mean? In 1997-8 Parliament deliberately decided to treat civil and ‘family’ proceedings separately. Civil Procedure Act 1997 (neither does that Act nor HRA 1998 define ‘civil proceedings’) set up the machinery for CPR 1998.

 

The term ‘civil proceedings’, for rule-making purposes, was specifically defined to exclude family proceedings.  CPR 1998 could not be used for family proceedings as defined (now) by Courts Act 2003 s 75 (CPR 1998 r 2.1(2)). Section 75 sets up the machinery for making family proceedings rules separate from CPR 1998, which eventually lead to FPR 2010 (cf Family Proceedings Rules 1991 which were subject to the provisions of the then civil proceedings rules). In HRA s 8(2) the reference to ‘civil proceedings’ is likely to be the post 1997-8 definition, rather than the term (ie most non-criminal proceedings) which operated till then. On that logic, proceedings under s 8(2) as ‘civil proceedings’, were intended by Parliament to be issued under CPR 1998, not as or within family proceedings.

 

The reference to Courts Act 2003 s 75, at s 75(3), takes the reader to MFPA 1984 s 32 (which defines ‘family business’) which is defined by SCA 1981 s 61 and Sch 1 para 3 (as explained above). Para 3 makes no reference to claims under s 8(1), which is unsurprising since damages claims are not always immediately associated with ‘family business’ – there are many other forms of proceedings which may lead to a claim under s 8(2). It seems likely that s 8(2) did not assume that family courts would adopt a ‘power to award damages’; and that is the view taken by text-book writers at the time of introduction of HRA 1998 (eg Swindells, above).

 

‘Separate proceedings’ in judicial review: Anufrijeva

 

Claims should be by judicial review – which cannot be in the county courts (see CCA 1984 s 38(3) above. This is explained by the Court of Appeal in Anufrijeva and anor v Southwark London Borough Council [2003] EWCA Civ (judgment: 16 October 2003). This is by CPR 1998 Pt 54 (which is not difficult). This will be in writing, and – in care proceedings – based on facts already found in family courts. Issue estoppel will mostly narrow the factual proof. This need not be a difficult exercise, not one which is beyond the wit of most judges to case manage. From a legal aid point of view it is very important. There will then be no doubt that the legal aid statutory charge cannot apply to damages.

HRA damages and legal aid: a Pyrrhic exercise?

Human Rights Act 1998 claims and care proceedings

 

A controversy is developing between two Family Division judges – mostly Cobb J and Keehan J – over whether the legal aid statutory charge applies to damages recovered by children and their parents under Human Rights Act 1998 (‘HRA’) s 8. The Lord Chancellor (ie Legal Aid Agency) does not seem to know which way to jump. In P v A Local Authority [2016] EWHC (Fam) she said the charge applied, and lost; and in H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam) she decided it did not. Both were cases of Keehan J).

 

The problem arises in particular in relation to claims following care proceedings (though it could arise in other family proceedings where the public authority is Child Support Agency, or HM Courts and Tribunal Service (for delay in court proceedings) or LAA itself). In cases where the local authority have breached a European Convention 1950 right (eg taking a child away in breach of respect for family life: HRA and Art 8; as happened in a third case CZ (Human Rights Claim: Costs) [2017] EWFC 11, Cobb J) the parties may go on to claim a court declaration that a local authority have acted unlawfully (HRA ss 6 and 7). If the court thinks the public authority have behaved in a way which they regard as unlawful, then the court can go on to order them to pay damages to a claimant (HRA s 8(1)).

 

A parent and child(ren) will have legal aid in the care proceedings (it is always, for practical purposes, automatic in care proceedings). In addition – and separately, as will appear – they may each have legal aid for their damages claim.

 

Legal aid statutory charge

 

This is all relatively straightforward (save for an issue to be dealt with on another day: that family courts have no power to award damages or to deal with civil proceedings so should not be dealing with these cases: HRA s 8(2)); save that the LAA come into it. They have granted legal aid for the care proceedings and exercise their statutory charge on damages claimed in the HRA proceedings. In some cases, they say (eg in this instance the claimant is a 6 month old child) something like the following:

 

  • You (the child) have had legal aid for the care proceedings and your lawyer’s bill is (say) in excess of £10,000;
  • Your HRA damages awarded by the family courts are £7,500; and the local authority agree they’ll pay your costs on the HRA claim.
  • £7,500 is less than £10,000 in your care proceedings, so we’ll keep it; and, though the court said you should have the cash and your costs on the HRA proceedings, you will have nothing. (Your lawyers will be paid and – on that example – all you have done is to increase your barrister’s and solicitor’s 2017 income. For you it is a Pyrrhic victory: ie you’ve got nothing for all the trouble you suffered.)

 

Solicitor’s lien for costs from property recovered or preserved ‘in the proceedings’

 

So how can this be? It is an old rule of law that if a solicitor acts in a case (the same doesn’t necessarily apply to barristers) and s/he recovers or holds onto property or money for a client, the solicitor can take the fees for acting in the case – the ‘proceedings’ – from the money recovered; or charge it – like a second mortgage – on the property. This applies to ordinary civil proceedings, or to legal aid cases; and it is now known as ‘the statutory’ charge.

 

Recent cases where the statutory charge has applied in legal aid cases are the following. As can be seen the Lord Chancellor – who is responsible for the LAA which runs legal aid – are as follows:

 

  • P v A Local Authority (above) where the LAA had said, in separate HRA damages proceedings (for which they refused legal aid) and which followed funded wardship proceedings, that the charge applied. Keehan J said no.
  • CZ (above) where a HRA damages claim was said by Cobb J, on application by the LAA, to attract the charge for the parallel care proceedings.
  • H v Northants (above) late in the proceedings, the LAA conceded that the charge did not apply, where they had issued a separate certificate for the damages proceedings.

 

When can the statutory charge apply?

 

The statutory charge has been part of legal aid legislation since the earliest Legal Aid Act 1949. It puts the Lord Chancellor in the same position that lawyers would be under the solicitor’s charge.

 

The legal aid charge is defined by Legal Aid Sentencing and Punishment of Offenders Act 2012 s 25(1) as follows:

 

(1) Where civil legal services are made available to an individual under this Part, the amounts [due to Lord Chancellor] are to constitute a first charge on – (a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person).

 

To define whether the charge applies four questions must be asked. These are extracted from Hanlon v The Law Society [1981] AC 124 (the Law Society was then responsible for legal aid); thought Hanlon seems not to have been referred to in any of the above four cases. Hanlon related to the charge under Legal Aid Act 1974 s 9(6); but for all material purposes the charge is defined in the same way in s 25(1), so Hanlon can be treated as the law today.

 

In Hanlon a nurse petitioner (represented throughout by the then Nicholas Wall) had legal aid for matrimonial proceedings where she had also been involved in defended divorce and custody proceedings; and in which she (famously at the time: Hanlon v Hanlon [1978] 1 WLR 592) secured an outright transfer of her former matrimonial home. How much of the costs applied to the charge; and could the Law Society postpone its operation? Of the second question, the House of Lords said they had a discretion to postpone. On the first, the following issues arose:

 

Does the statutory charge apply in legally aided proceedings?

 

(1) What are the ‘proceedings’? – The starting point for definition of the extent of the charge is: what is the scope of the legal aid certificate (ie the proceedings which it covers, and see Lord Scarman in Hanlon v Law Society at 186G-H). The scope of a legal aid certificate is akin to the solicitors’ retainer for work to be done for a client. If there are separate proceedings (eg for ‘civil proceedings’ under HRA 1998 s 8(2) (below)) then different principles for definition of s 25(1)(a) ‘proceedings’ apply.

 

(2) What is ‘the property’? – ‘Property’ is any property or money (eg a lump sum in matrimonial proceedings or damages) which was in issue between the parties in the proceedings (or included as a ‘compromise or settlement’ (s 25(1)(a)) of any proceedings: Van Hoorn v The Law Society [1984] FLR 203).

 

(3) Was the property in issue in the proceedings (or part of a ‘compromise or settlement’ of the case)? – Whether the charge applies to particular property turns on whether or not it was in issue in the proceedings for which the certificate was granted (Watkinson v Legal Aid Board [1991] 2 FLR 26 CA). ‘What has been in issue is to be collected as a matter of fact from pleadings, evidence, judgment and/or order’ (per Lord Simon in Hanlon v Law Society at 180H). It is the proceedings (ie the lis) between the parties which defines the proceedings. In the case of HRA 1998 s 8(1) damages cases, the lis is between the claimant (parents and/or child) and the local authority; and the costs (subject to the ‘separate proceedings’ point below) can be the costs only in the ‘civil proceedings’.

 

(4) Was the ‘property recovered or preserved’? – Property is only ‘recovered or preserved’ if it is in issue in, or part of a compromise of, proceedings: ‘A person recovers or preserves in legal proceedings only what is in issue between the parties’ (Lord Scarman in Hanlon at 187G). Property is recovered if a person takes proceedings to convert it to his own use – eg a property adjustment order (Curling v Law Society [1985] FLR 831, CA); property is preserved if a person successfully resists a claim to his property – eg an order for sale or (Parkes v Legal Aid Board [1997] 1 FLR 77, CA).

 

Separate proceedings; civil proceedings

 

Only proceedings which are covered by a legal aid certificate are subject to the charge (Hanlon v Law Society (above)). So what happens where – as under review here – care proceedings and HRA 1998 damages are involved? Can the statutory charge apply to costs in the children proceedings, attaching to the HRA damages? Yes says Cobb J (CZ (above)); no said the Lord Chancellor in H v Northants (above). Taking account of Hanlon v Law Society the question turns on whether there are separate proceedings. This is not an issue which has been addressed clearly by the family judges.

 

But why are ‘family judges’ dealing with all this at all? HRA 1998 s 8(1) and (2) says that the court can award such damages ‘within its powers as it considers just and appropriate; but ‘(2) … damages may be awarded only by a court which has power to award damages… in civil proceedings’. Family courts have no power to deal with non-family ‘civil proceedings’ (the types of case they can take on are listed in Senior Courts Act 1981 Sch 1 para 3). In Anufrijeva v Southwark London Borough Council [2003] EWCA Civ the Court of Appeal said applications should be made in the Administrative Court; but certainly it must be under Civil Procedure Rules 1998).

 

As I read HRA s 8(1) and (2), family courts judges should not be dealing with these cases at all. Legal aid for care proceedings in the family courts is one thing. Legal aid for damages should be in a separate court under CPR 1998. Proceedings should be by separate judicial review application in the Administrative Court.

 

Statutory charge and HRA damages in ‘separate proceedings’

 

If the steps derived from Hanlon v Law Society are followed; and the proceedings are indeed separate – which, in the case of a damages claim under HRA s 8, they must be – then damages are exempt from the statutory charge for care proceedings. It can arise only to the extent there is any short-fall between costs payable by the defendant and what is paid by LAA for the legal services.

Child’s evidence – Part 2: contact and domestic violence

Child welfare, contact – and a practice direction

 

In Re S (a Child) [2017] EWCA Civ 44 (as explained in Part 1 of this series) the Court of Appeal allowed one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). M did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) As reported in Part 1 the parents had a short relationship. In the court below the judge had found three of M’s allegations proved: controlling behaviour and violence exacerbated by drink. A last allegation was based on what A had told a family support worker, but which the judge had rejected; though the judge had not heard what the child had to say about what had happened.

 

This series looks at how European law deals with child issues arising in connection with this case; and hypothetical issues which arise from it where law reform is need or is under review, as follows:

 

  • Child’s rights and Art 24 – Considered in Part 1.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal)?
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Relocation to Ireland and further hearings about A – To be considered in Part 3.

 

Children’s fundamental rights

 

This article looks at the Re S case (above). It is considered especially from the point of view of the child; in the light of rights of the child under EU Charter law; and of recent reforms to existing UK statute law (especially Children Act 1989 (CA 1989) s 1).

 

Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 on the ‘Rights of a Child’ states:

 

  1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
  2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
  3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

By contrast, PD12J (considered further below) requires consideration to be given to ‘Representation of the child’ as follows:

 

  1. Subject to the seriousness of the allegations made and the difficulty of the case, the court shall consider whether it is appropriate for the child who is the subject of the application to be made a party to the proceedings and be separately represented. If the court considers that the child should be so represented, it shall review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court.

 

Amendments to Children Act 1989 s 1

 

Children Act 1989 s 1(2A) and (2B) were amended with effect from April 2014 in the context of the court dealing with the welfare of a child of a broken relationship as follows:

 

1 Welfare of the child 

(1)  When a court determines any question with respect to –

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a)…, is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

 

These ponderous amendments to a previously clear section are elaborated upon in s 1(6):

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

Welfare of a child is to equated with involvement – direct or indirect (s 1(2B)) – of a parent in a child’s life (s 1(2A)); but not where that contact, on evidence before the court, ‘would put the child at risk of suffering harm’ (s 1(6)).

 

In its original form Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (PD12J) was designed to deal with questions of domestic violence alongside contact. It was issued in 2008 in response to the first report of Women’s Aid into ‘Twenty-Nine Child Homicides’. It was re-issued to in its present form, at the same time as introduction of the Family Court and of the amendments to CA 1989 s 1. More background to this is explained at Cris Curley’s article ‘Domestic Violence and the Impact on Contact Re-examined’.

 

PD12J contact and domestic violence

 

PD12J sets out as its purpose (§2) that it is intended ‘to set out’ what should happen in relation to contact proceedings where domestic violence is admitted, or that a child or a party has experienced domestic violence by a parent; or that there is a risk of such violence. In its present form it accompanies the CA 1989 s 1 amendments referred to above; but there is little attempt to link what is set out in PD12J to the formal provisions Family Procedure Rules 2010 themselves in relation to domestic violence proceedings (Family Law Act 1996 part 4 and FPR 2010 Part 10).

 

Amendments are now proposed in a report prepared by Cobb J for the President of the Family Division, ‘Review of Practice Direction 12J FPR 2010’  (18 November 2016). This may provide a move away from what has been seen under s 1(6) as ‘contact at all costs’ with a new §4 (see below) which displaces the presumption where contact could place a child at risk or the other parent’s life at risk, or either at significant harm. Law reform is needed here; but in what terms should this be done and by what means in law should it be achieved?

 

In an attempt to improve the position of children where domestic violence has been proved Cobb J proposes as follows:

 

  1. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply. The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

A footnote to this paragraph explains:

 

The statutory presumption in section 1(2A) CA 1989 applies ‘unless the contrary is shown. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm.

 

Thus it is proposed that a practice direction should put a gloss on the law not provided for by Parliament.

 

Practice direction and law

 

A practice direction can neither create nor change the law. In that sense it is not law. It is there to guide procedure. In Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274  the Court of Appeal considered whether a judge could make a practice direction or issue practice guidance. They explained what a practice direction is – now issued by the President of the Family Division with approval of the Lord Chancellor (Courts Act 2003 s 82).

 

The particular significance of this is that if an abused parent or child goes to court thinking that the new practice direction protects them, they may find that a judge is persuaded by the other parent that it does not. The judge may take the view that a practice direction cannot tell a court to ignore the law (as the proposed new §4 seems to do). This similar, though in different scale, to the Supreme Court telling the Prime Minister that she could not ignore Parliament and must have a bill for UK to leave Europe.

 

Thus, in Bovale, the Court of Appeal assumed that the function of a practice direction was subsidiary to and supportive of a rule which already defined procedure:

 

[36] … We accept that one object of the practice directions which supplement the rules is to provide guidance to litigants but they also contain directions as to the procedure that should be followed.

 

Children must be protected, especially where the court has evidence of their harm; but if this is to be done by restrictions on or refusal of contact this affects the rights of a parent and of the child. It must be done in a way which complies with law and brings the law in a fait way within the terms of Art 24(3) of the Charter (above). If it is to be said that, as a matter of law, ‘the contrary is shown’ (per CA 1989 s 1(2A)) and that the ‘involvement of [a] parent in the life of the child concerned’ may inhibit a child’s welfare, a statutory presumption is overridden by a practice direction. Thus where – as in Re S violence may be proved against him (it has been proved against A’s mother) – then those allegations must be stated in an Act of Parliament as the basis for findings under s 1(6); and the problems of the parents (mostly women) and children affected must be given the dignity in statutory provision (which does not include a practice direction) which their difficulties demand.

 

And the attempted change of the law must not, please, be left to be exposed as not-law by a violent father. That would enhance the abuse still further.

 

Further abuse by cross-examination

 

Abuse by cross-examination in family courts   looked at the issue of the experience – mostly of women – being cross-examined by an unrepresented former partner, against whom abuse is alleged. It was said by the all-parliamentary group which had reported in October 2016 whose report was considered there:

 

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.

 

Cobb J’s report proposes an addition to §28, which deals with the hearing of any contact issue:

 

  • The judge or lay justices must not permit an unrepresented alleged abuser to cross-examine or otherwise directly question the alleged victim, and must not require an unrepresented alleged victim to cross-examine or otherwise directly question the alleged abuser.

Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for tThe judge or lay justices may to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence

 

The article went on to look at measures which could be used to alleviate this issue on analogy with what is to be found in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). Where domestic violence is alleged where contact is in issue the question and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for a complainant (A) or the child(ren) concerned (C) to be submitted to cross-examination by the alleged abuser (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 considers the question of cross-examination in person of C by B (the subject of cross-examination of A is dealt with in the article referred to and is now proposed for reform by the Secretary of State for Justice).

 

The analogy with criminal proceedings must be pursued. There a witness in C’s position is protected (YJCEA 1999 Part 2 Ch 2). 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 ). 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).

 

Cross-examination of the child

 

Dealing with a child’s evidence – as could be the case with the child A in the Re W case – calls for sensitive case management and special attention by the court. If it were to be approached as in criminal proceedings, it will call for public funding (now under review by the Ministry of Justice).

 

For children giving evidence in criminal proceedings YJCEA 1999 s 34 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.

 

YJCEA 1999 Part 2 Ch 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 witness, where the various forms of allegation 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.

 

Much may already be possible under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485  (a case involving evidence from a 14 year-old 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.

 

Child’s rights: contact and domestic violence

 

In R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157 the Court of Appeal (Criminal Division) was concerned with the evidence of another 8 year old (C). A judge had decided to refuse to hear in criminal proceedings. JP was one of two accused whose convictions were under review in the Court of Appeal, Criminal Division in that appeal. He had been convicted on three counts of sexual assault on C. Special measures directions had been given as Hallett LJ explained:

 

[9] … The child’s video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Bennett, using the live link. He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate’s Gateway Toolkit. All parties agreed that [C], described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required.

 

On day of the hearing, C attended court to be cross-examined over the live-link (YJCEA 1999 ss 18(1) and 24). The prosecuting barrister took defence counsel – both, not doubt, without wigs and gowns (YJCEA 1999 s 26) – to meet C. She was with her parents and both counsel thought she was content to give evidence. After this, and on his own, the judge went to see C and then announced to the court that C was unable to participate in the proceedings. Her only evidence was the video. She could not be asked any questions by the defence. Her parents gave evidence.

 

JP appealled on the ground that, because the judge had prevented any attempt at C being asked any questions he had not had a fair trial. His appeal was allowed. Of children giving evidence generally the Court of Appeal in R v Barker [2010] EWCA Crim 4  (per Lord Judge LCJ) said:

 

[42] The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished (emphasis supplied).

 

Call for law reform

 

Both areas of court process – contact arising from alleged violence and what proved violence requires in relation to contact – call for urgent law reform. That must include, on both points, reform of statute law. This will reflect the need for funding if alleged perpetrators are to cross-examine complainant of child witnesses in person. If statutory presumptions are to be altered for the protection of the children concerned, then this cannot be by practice direction. That is not enough if a parent against whom CA 1989 s 1(6) imputations are made against him/her who validly objects to what the proposed PD12J para 4 seeks to do.

 

And when all this is fully reformed, the Minister of Justice is urged to tell the Family Procedure Rules Committee that a practice direction is not sufficient to reform procedure. It must be as part of Family Procedure Rules 2010; it must span those parts of the rules which deal with children proceedings and with proceedings for domestic violence (FPR 2010 Part 10 and 12); and it must reflect the EU Charter and must take account of children’s evidence and views ‘in accordance with their age and maturity’ (Art 24(1) of the Charter).

Child’s evidence – Part 1: before and after EU withdrawal

Court of Appeal and hearing the child – or not…

In Re S (a Child) [2017] EWCA Civ 44, through a fog of imprecise chronology and unavailable evidence (or was it uncalled, in the case of the child?), the Court of Appeal were able to allow one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). She did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) By the time of the hearing before the judge M had left United Kingdom to live with her husband in Ireland; but, after A was made a ward, she returned to UK to apply to the UK court to relocate.

The parents had a short relationship which had ended in August 2010. The appeal related to findings made by the judge before whom a series of contact applications (starting in the family proceedings court) had finally arrived. He had a schedule of 14 allegations made by the mother. He found three proved, the remainder he rejected. The first two were general, namely that F had behaved in a controlling way towards M throughout their relationship and that he was violent towards her, this being exacerbated by drink. The third proved allegation related to a specific event when the father assaulted the mother, grabbing her around the neck and throwing her to the floor. The last item on the schedule was a recital of cautions and convictions of the father, which the father accepted was accurate and the judge treated as a matter of record.

Evidence from the child: mother’s case rejected by the judge

Of the remaining ten sets of allegations made by M, all but one were rejected by the by the Court of Appeal. The judge had not accepted the ground which arose partly from what A had said. (The judge did not hear what the child had to say about it: this article returns later to the absolute right of the child to be heard.) On this ground the Court of Appeal allowed M’s appeal. It arose from what A had said to a family support worker (S), combined with the fact of a ‘conditional caution’ – for which there must be an admission by a suspect – that F had injured the children a later girlfriend.

Black LJ (who gave the main judgment) explained the factual back-ground when S had seen A, as follows. :

[27] … The judge had available to him [S’s] written report of what A said to her. In it, S explained that she had been working with the family since February 2013, helping to “manage their high levels of anxieties”. It seems that the visit during which the material conversation occurred was her third visit and took place around mid-July 2013. There is no suggestion in her report that the visit was in any way a response to A’s account of his father’s actions during contact. Ms Solway described how, during the visit, she spent some time with A in the kitchen and then in his bedroom. She said that he was enjoying a story book when he asked “unexpectedly” whether she was going to help him to get a particular person to stop hurting him, demonstrating to her how the person had grabbed his arm. He identified the person concerned by his forename only, the forename being the same as the father’s.

The judge had said that ‘the allegation was a serious one’; but then had rejected the allegation and not given it full consideration said the appeal court. Black LJ explained this:

[30] … It seems to me that his handling of the issue fell short in a number of ways. It was incumbent upon him, I think, to deal more fully with what was quite a graphic description by Ms Solway of A’s apparently spontaneous demonstration of events to her. The judge stated baldly that he was unable to rely upon what A had said and gave very little explanation as to why he took that view, except perhaps that there was no mark on A. As for the caution, he said in responding to the request for clarification that he “took no account of [the father’s] previous physical chastisement of children” (my emphasis). He might ultimately have concluded that the father’s actions in relation to the other children did not assist him particularly in his decision about what happened to A, but he did need, in my view, to consider the evidence about those actions specifically and to explain expressly how he dealt with it in making his decision. Furthermore, the judge should also, in my view, have given consideration to whether the findings that he had made about the father’s violence towards the mother contributed anything to the issue in relation to A.

Black LJ therefore set aside the finding that the assault on A did not take place. She remitted the allegation for hearing by another circuit judge (though no reference was made by her to Art 24 (below) or as to whether A will speak to the judge).

Modern questions of legal principle

These facts in relation to this particular case raise a number of live questions of law, both in relation to EU law and family proceedings; and as to other areas of changing family law. In summary these are as follows:

  • Child’s rights and Art 24 – This article looks at the appeal and asks how might the same case have been dealt with if Charter of Fundamental Rights of the European Union (2000/C 364/01) (‘the Charter’) Art 24 (and its expression of the rights of the child) been taken fully into account.
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal).
  • Relocation to Ireland and further hearings about A – And speculation for the future: how might contact be dealt with after EU withdrawal if A goes to Ireland (which will remain in EU) where the mother wants to live.

Rights of the child under EU Charter of Fundamental Rights

The Charter defines rights, some of which are replicated in European Convention 1950, for all EU member states. It is part of EU and UK law since the Lisbon Treaty of 2009. It is enforceable in the European Court of Justice. Presumably it will go with EU withdrawal.

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

So what were A’s rights in these proceedings; what light could he have shed on what happened; and what (if anything) will happen to those rights with EU withdrawal? The first thing to say is on children’s views and their evidence (dealt with more fully in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 19). A child’s evidence may be as to relevant facts, or as to expression of a view on outcome. Had A been permitted to ‘express a view’ in these proceedings (as Art 24(2) guarantees: it is not clear from the report whether the judge offered this) he could have spoken to the judge about both: what had happened during when he was ‘hurt’ by F and as to whether he had a view on the future of contact. He is competent to give evidence; but as to how would be for the judge.

These two aspects of hearing a child have been considered by Lady Hale. She explained giving of evidence by a child in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 (evidence from a 12 year old as to sexual abuse by her father) and the means by which this could be done (it seems the hearsay evidence of S was not accepted by the judge):

[28]   The family court will have to be realistic in evaluating how effective it can be in maximising the advantage [of the child giving evidence] while minimising the harm [to the individual child]. There are things that the 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. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early videoed cross-examination as proposed by Pigot. Another is cross-examination via video-link. But another is 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.

From a reading only of the law report, it is difficult to see how harm to A would outweigh the longer-term advantage to his welfare of his giving live evidence, if he is indeed at risk from further ham from his father. And this is a question which a court must surely answer under Children Act 1989 s 1(6) (contact between child and parent, unless risk of harm: to be considered later in this series)?

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 the House of Lords was dealing with a child of the same age as A. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

[57]   There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

In neither instance is need the child be subjected to intense cross-examination as might be an adult; but it is the child’s right to be heard in way which was not obviously the case – certainly the child was given no role by Black LJ in the appeal – in this case.

Child having an ‘opportunity to be heard’

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was expressly taken into consideration and the question of a child being heard was raised to a ‘fundamental principle’ of English child law (and see Evidence in family proceedings (above) at Ch 19 Pt 6). In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 – slightly younger than A – when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

In Re D Ryder LJ treated the child as having ‘the right … to participate in the process that is about him or her’ (§44). He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case. This is supported also by United Nations Convention on the Rights of the Child 1989 Art 12:

(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.

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). Of the list in s 1(3) he held s 1(3)(a) – that the court shall consider the ascertainable wishes and feelings of a child – to be a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded:

[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

Children and EU law

And what of the child’s right to be heard in Europe? United Nations Convention on the Rights of the Child 1989 Art 12 (by which UK will still be bound, so far its provisions are enforceable) is in similar terms to Art 23 of the Charter as to a child’s right to be heard in ‘judicial proceedings’, and where that child is capable of forming his or her own views (and see Ryder LJ in Re D [2016] (above)).

In UK law, the child’s wishes and feelings are considered by the court in the light of the child’ ‘age and understanding’ (a factor to be considered in Part 3). It may be a distinction without any real difference; but the Charter and UN Convention express these principles as a right. In UK it is permissive. The present Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 set out their purpose as being to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings.

The Charter will go with EU withdrawal. It remains to be seen whether UK judges develop its concept of child’s rights (as distinct from their views being taken into account); or whether they will take the more passive approach implied by the UK sources referred to above. And then, as will be considered later in this series, it remains to be seen whether any of the rights now attaching in English proceedings, will be salvaged from the EU withdrawal wreckage; or will English and European courts brandish differing rights of issue and enforcement of proceedings?