US and its gun lobby


I had an exchange recently with a friend from US who had lamented President Trump’s proposal to arm teachers to control, as Trump sees it, the deaths of children killed in schools. She pointed out that teachers would leave their jobs if required to be armed. (I won’t discuss here the twisted logic of such an arm-teachers scheme: it is surely only comprehensible by a few of the more twisted of US intellects?)


Trump’s response was surely not that of a mature person? No one should have a gun, save for very good reason, in the first place. Guns should be banned; or at least their use should be heavily regulated (as they are in most countries which regard themselves as civilised).


My friend replied that US people would not accept that: ‘That’s never going to fly in the US. It’s in our Constitution. The key here will be which arms we have the right to bear; and under what conditions?’


So why not change the ‘constitution’ and teach US people that killing is wrong? ‘The means of killing should be taken away from people’ I suggested. Ah, ‘easier said than done, said my friend’. And yet, in 1865 the constitution was changed to deal with slavery….


This is all so basic. People in civilised countries stopped carrying swords and daggers more than two centuries ago; and yet in US most people – I believe – are entitled to carry guns. (I even find it odd that in eg France police and customs officers carry guns: that would never be allowed in England.) Guns provide a means far more lethal than swords to kill each other. You can kill at much further away with a fire-arm than with a dagger.


US claims to lead the free world; yet US people carry guns around to kill each other with in a way which to most of us is truly primitive. It gets worse. Success for some US persons – such as their President – is judged by how much money you can amass. Materialism is everything. Greed defines you. Yet it is said that it is easier for a camel to pass through the eye of a needle than for a rich man to get to heaven. In other societies art, music and intellectual achievement are measures of success, for many. US people, relative to their number, have a modest number of artists, composers, intellectuals, scientists and law reformers. The state of its religion is about where European societies were in the mid-1800s.


Compared to many other modern societies, US is a primitive country to be sure: governed by materialism and regulated by private gun-laws. And to ban or regulate guns is ‘Easier said than done’ said my friend. That was probably what many people said in (say) 1800 of slavery. In England slavery was said not to exist at common law (Somersett’s case) in 1775. Trade in slaves was abolished in 1807 and it was formally banned throughout the colonies in 1833. In US it was banned in 1865, though segregationist tendencies subsisted – still subsist, under Trump? – for a long time.


If the US can ban slavery in 1865, why can it not ban guns now; or at least severely regulate their use (as is the case with the rest of us)?


Legal aid and Convention rights in domestic violence committal proceedings


Non-molestation orders and conviction for breach


Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson [1978] UKHL 1, [1979] AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article


FLA 1996 s 42, as relevant, reads


42 Non-molestation orders

(1)   In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions –

(a)provision prohibiting a person (‘the respondent’ [(B)]) from molesting another person [(A)] who is associated with the respondent;

(b)provision prohibiting [B] from molesting a relevant child [(C)].

(2) The court may make a non-molestation order –

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by [A] with [B]; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or [C] even though no such application has been made.


Offence for breach of non-molestation order


Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:


42A Offence of breaching non-molestation order

(1)   A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….

(5) A person guilty of an offence under this section is liable –

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….


Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).


Conviction on a substratum of findings to a civil standard of proof


Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid.  B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.


If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest [2015] EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal) [2016] 1 FLR 773.


McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura [2013] EWHC 3633 (Fam), [2013] 2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan [2013] EWCA Civ 586, [2014] 1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:


[55]   The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.


The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:


[55] … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

(c)the burden of proof is at all times on the applicant; and

(d)the respondent cannot be compelled to give evidence.



The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak [2001] 1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:


[29] … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.


The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:


3 Everyone charged with a criminal offence has the following minimum rights –

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

(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;…


Engels v Netherlands: ‘legal assistance of his choosing’


Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:


[85] The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a “determination” of “civil rights”

[87] Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).


As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.


Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3


The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?


This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:


[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.


And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?


If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.


Legal aid and the non-molestation order


The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.


But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.


 I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.

Child contact, non-molestation and McKenzie Friends

Non-molestation and child arrangements orders



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


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


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


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


The father’s appeal


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


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


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


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


‘Findings of fact’ hearings


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


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


Non-molestation order and its duration


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


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


Domestic violence: delay and case management


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


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


McKenzie friends


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


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


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


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


Fairness of an alleged abuser’s trial


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

Listening to children and ‘disclosure’

Interviewing children: Cleveland and ABE guidance


In AS v TH (False Allegations of Abuse) [2016] EWHC 532 Fam, MacDonald J said of the term ‘disclosure’ cases where child abuse is suspected that the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmd 412: Cleveland Report) contains a variety of important guidance with respect to cases involving allegations of sexual abuse and children proceedings. Before setting out his thoughts on this the judge – a highly experienced children lawyer – noted, in passing:


[33] … despite the fact that the use of the term ‘disclosure’ to describe a statement or allegation of abuse made by a child has been deprecated since the Cleveland Report due to it precluding the notion that the abuse might not have occurred (see para 12.34(1)), every professional who gave evidence in this case (except the Children’s Guardian) used the term ‘disclosure’ to describe what the children had said to them).


And now a prompt for this note is that last Friday (2 February 2018) Resolution (which represents a group of family lawyers, and assert expertise in children law) and NSPCC both put out publicity asking for replies for a survey on ‘receiving disclosures’:


We would like invite you to complete our survey on professionals’ experiences of listening to children and receiving disclosures of abuse and neglect. Our ambition is to develop a practical resource that will support professionals working with children to confidently deal with disclosures of abuse and to improve children’s experiences of the disclosure process.


Resolution backed this up with a tweet:


The @NSPCC is looking for input from professionals working with children and family courts to inform a new resource to help professionals deal with disclosures. The survey should take 15 minutes and all submissions are anonymous via 


Neither organisation has responded to my concern at the mismatch between what they are sending out, and what was said – over 30 years ago – in the Cleveland Report. Both should be well aware of the report.


Yesterday (5 February 2018) Sarah Phillimore posted: on what’s in a word, like ‘disclosure’.


Mr Justice MacDonald and the Cleveland Report


MacDonald J continued in relation the Cleveland Report and to how professionals can respond to worries about a child being abused:


[35] Where a child makes an allegation of abuse to a professional, the relevant guidance for professionals to whom allegations of abuse are reported makes clear the following principles with respect to the initial contact with the child.

[36] In the departmental advice What to do if you’re worried a child is being abused (HM Government, March 2015) (replacing previous guidance published in 2006) states that before referring to children’s services or the Police an attempt should be made to establish the basic facts. Within this context, the following is said at [28]:

“The signs of child abuse might not always be obvious and a child might not tell anyone what is happening to them. You should therefore question behaviours if something seems unusual and try to speak to the child, alone, if appropriate, to seek further information”

And at [29]:

“If a child reports, following a conversation you have initiated or otherwise, that they are being abused and neglected, you should listen to them, take their allegation seriously, and reassure them that you will take action to keep them safe.”


And then to ABE Guidance and video recording of alleged victims:


[37] The statutory guidance Achieving Best Evidence in Criminal Proceedings (March 2011) makes clear at [2.4] that the need to consider a video recorded interview in respect of the allegations may not be immediately apparent to professionals involved prior to the police being informed. [Para 2.5 continues]:

“Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present.”

[38] The ABE Guidance goes on to state at [2.6] under the heading ‘Initial Contact with Victims and Witnesses’ that a person engaged in early discussion with an alleged victim or witness should, as far as possible, (a) listen, (b) not stop a free recall of events and (c) where it is necessary to ask questions, ask open-ended or specific closed questions rather than forced-choice, leading or multiple questions and ask no more questions than are necessary to take immediate action.


ABE Guidance


The subject of interviewing children takes the practitioner back to Chapter 12 of the Cleveland report, which is entitled ‘Listening to the Child’ and summarises the evidence of a number of the child psychiatrists who gave evidence to the inquiry. The purpose of the interview must be ‘to hear what the child has to say’ (§12.12) where the child is of sufficient ‘age and understanding’ (§12.10). The interviewer must use open questions (§§12.24; 12.34.4) and understand that there may be a variety of reasons why the child is speaking or is not willing to: the abuse has occurred; the child does not want to speak or is in denial; or the abuse has not occurred (§12.25). Interviewers must have an open mind (§12.34.3: which makes the term ‘disclosure’ such bad practice). Those conducting interviews must be trained (§12.34.2&11).


These recommendations are developed on the back of interviewing for court in criminal proceedings following Youth Justice and Criminal Evidence Act 1999 Pt 2 in ABE Guidance. The Guidance is clear: no assumptions as to anything that has happened – which had bedevilled the initial investigations by doctors in Cleveland – must be made by anyone interviewing a child. An open mind and open questions are essential.

EU withdrawal and family law

Notes on speech of Lady Sherlock in House of Lords


Extract from conclusion to speech of Lady Sherlock in House of Lords debate on EU withdrawal on 31 January 2017. The numbering is mine. Comments appear below each paragraph:


Procedure and European Court of Justice

1 What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.


The procedural point cannot be stressed too strongly. Each EU country keeps its own cultural roots in family law. No one tells the UK it must change its primitive adoption laws; nor dictates to any EU catholic country which may have different bases for dissolution of marriage. UK money distribution remains its own.


That said the primacy of children’s welfare in any decisions is one adopted by EU law and re-enforced by the European Court Neulinger and Shuruk v Switzerland Application No 41615/07 [2011] 1 FLR 122, ECtHR).


A bespoke arrangement

2 Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.


‘Slow and difficult’ is not an answer. We are here today with ‘exit day’ a matter of months away; so for the sake of the families and children concerned it must be dealt with by 2019. The opposing Brexit army abetted by MPs on both sides of the Commons, is advancing. Family lawyers cannot just say: ‘wait, we aren’t ready to fight’. We just have to work harder to prepare battle positions: ie a fresh Brussels IIA.


The ‘bespoke’ solution sounds a little like the second option put forward by family lawyers in reply to Brexit (October 2017). If nothing is ‘bespoken’, separating families and their children will fall off the famous Brexit cliff edge; and this is not for lack of warning. The problems families will suffer as outlined in the earlier part of the speech were predicted by the Supreme Court over a year ago in R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 at para [71].


The painful fact of the matter is that unless EU and the Tories agree to keep such instruments as Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) on hold families like the one in the earlier part of Lady Sherlock’s will fall into a Brexit void where few hold will be barred between competing jurisdictions.


The Ministry of Justice and practising lawyers must get their heads together with individual jurisdictions to work out what reciprocity can be agreed following EU withdrawal and to agree how this is to be enforced. For the sake of the families and their children concerned, surely those who support EU withdrawal can agree that the European Court of Justice continue to have jurisdiction in those few cases where a neutral arbiter is needed?

3 I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

4 I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.




The issues over children go must wider than anti-trafficking (crucial though this is). EU law is much more firm and clear – though still not always followed by UK law (as I explain ). UK is bound by eg Charter of Fundamental Rights of the European Union (2000/C 364/01), which the Government proposes to ditch. This gives children rights to express their views which still need clearer procedural expression in English and Welsh law. Outside EU there is a real risk that children’s rights will again suffer. The massive advances of Children Act 1989 twenty-five years later and without the impetus of EU law reform look tawdry in the area of children rights.


Without Brussels IIA children in care will find themselves caught in a jurisdictional cross-fire where parents leave UK, and children are in care in England and Wales (Brussels IIA Art 15: there are a number of recent reported decisions on this see eg Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge).


Agenda for EU withdrawal


If EU withdrawal is to go ahead


  • Lawyers and the Ministry of Justice must urgently engage with EU judges (through a representative body, or in each state)
  • Children law and children’s rights to be heard must be made more clear preferably by statute.


Without this families and children will suffer.

Sir Henry Brooke and human rights

20160419_170156Mubarak and the right to a fair trial


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


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


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


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


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


Debtors Act 1869 s 5 in the twentieth century


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


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


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


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


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


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


Privilege against self-incrimination and European Convention 1950


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


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


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

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

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

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

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

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


Proceeds of Crime Act 2002 Part 7


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

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

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

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

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


And there the subject has rested…

Precedent, or just a law report?

20170722_161644Common law and law reports


The prompt for this article came from the fact that increasing numbers of judgements are being published by BAILII which can be published; but some of them cannot be cited in court. That is not to blame BAILII: they perform a brilliant public service in making so many judgments available online. They are not to know – if they are sent a judgement by a judge it is likely to be published – whether it can be cited or not; and therefore whether (perhaps) it should be published. (I have dealt with this before.)


The problem is compounded by the variety of set of family reports. Rather than – as with eg Chancery, Commercial, QB and so on – family law have three sets of reports: one for the Family Division (High Court judges), one for Family Court with a High Court judge sitting and one for the rest of the Family Court (mostly circuit judges). Of those the last – if the 2001 practice direction referred to is treated as law – may not be cited unless they have a 6.1 certificate (as explained below).


And to that three must be added family cases in Court of Appeal and Supreme Court (plus Upper Tribunal child support cases for the very conscientious). It is these and the High Court cases which, in reality, create the law; or move the law along a gradual path, as Lord Bingham described it. So


  • How does the law of precedent work (in outline); and
  • What may a party, or their advocate, cite in court?


Common law: English and Welsh law and lawyers


First, English and Welsh law (called ‘English law’ here): this consists of common law and statute law (Acts of Parliament) which can create fresh law (and override common law); or it can set out the common law in an Act of parliament (for clarity’s sake). Common law is what judges over the years – sometime the centuries – have said is the law.


For example, the rule that English court proceedings are always in open court is a common law rule, now confirmed by the European Convention 1950 on human rights (Article 6.1), but its origin and its operation and when privacy exceptions apply remain common law. The common law position is further explained by court rules for civil and (separately) for family proceedings. The rule that a person can discuss his or her legal problem with a lawyer in complete privacy is entirely a matter for common law. You’ll not find a definition of the rule – legal professional privilege – in any statute.


So how, in a little more detail, is the common law made up? Most cases at High Court (including the administrative Upper Tribunals) and higher (ie Court of Appeal and Supreme Court) levels make up the common law, when they deal with a question of law. They become precedents to which reference may then be made in appropriate cases. They help to make up the substantial patchwork which is the English common law.


Cases below that level are not precedents. Nor are cases where the decision turns only on the facts or which show a judge exercising discretion (that is deciding a case where the judge him- or herself must decide as a matter of preference – not of law – which way to resolve the case).


Citations practice direction


Decisions which turn on a question of law and explain what is the law can be precedents at the appropriate level of judge. This is set out in a practice direction issued by the then Lord Chief Justice, Lord Woolf:  Practice Direction 9 April 2001 Citation of Authorities. The practice direction stated that, in the case of certain lesser judgments they could be cited only ‘if they fulfil specified requirements’ – ie that, in the opinion of the judge who made the judgment, they made law. The practice direction, in para 6, listed the lesser judgments as:


  • Applications attended by one party only;
  • Applications for permission to appeal;
  • Decisions on applications that only decide that the application is arguable;
  • Cases in county courts and the Family Court.


Any cases in these categories cannot ‘be cited before any court’ (even though, for example, the case was in the Court of Appeal) save if the case ‘clearly indicates’ that it sets out ‘to establish a new principle or to extend the present law’; and that it says so in the judgment. I shall call this a ‘6.1 certificate’ (ie based on para 6.1 in the practice direction).


An immediate problem with this is that the relevant judges do not all seem to know about para 6.1 certificates.  A judge may make an interesting legal point but does not know that for it to be cited to a higher judge they have to include a 6.1 certificate. By contrast Court of Appeal judges – if reminded – may remember to pick up the point where they refuse permission to appeal, but on grounds which may usefully be cited another day.


Thus in Norman v Norman (No 2) Practice Note [2017] EWCA Civ 120, [2017] 1 WLR 2554 a wife asked the court, long after an original order had been made to permit her to appeal against a judge’s order which refused to set aside the original order. The specialist family law reports have not so far published the judgment. ICLR have done, since it concludes, in class 6.1 certificate style, where King LJ says:


Mr Glaser submits that the matters dealt with in this judgment establish a new principle or otherwise extend the present law and seeks permission for it to be cited pursuant to the Practice Direction of 9 April 2001, notwithstanding it is a judgment refusing permission to appeal. I grant that application.


Judicial hierarchy


The system of precedent and of a more senior judge overriding a lesser is driven largely – and, to an extent, understandably – by the advocate’s obsession with rank. At the bottom of the pile are solicitors and legal executives. Next are rank-and-file barristers, then Queens’ Counsel (QCs), also barristers (and all of whom wear operatic fancy dress – wigs and gowns – in open court). Judges – the people who make the decisions which determine cases – start with magistrates who, though advised by a lawyer, are lay people. In precedent terms district judges (and tribunal judges) and circuit judges can only be cited where they attach a 6.1 certificate (which is rare).


High court judge judgments (with those of Upper Tribunal judges) create the common law, with those of the Court of Appeal and Supreme Court. The only way any of their decisions can be changed is by a higher court (eg Court of Appeal overrides a High Court judge). In theory a High Court judge can disagree with another High Court judge; but it is regarded as not in accordance with High Court judicial comity to do so.


The Court of Appeal must follow the decision of another Court of Appeal (stare decisis as explained the House of Lords in eg Davis v Johnson [1978] UKHL 1, [1979] AC 264) unless the earlier court overlooked a point of law (per incuriam) which, if taken into account by the later court would make the later court wrong also (a recent example of this happened in a family case in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, [2013] 1 FLR 1095). In rare cases the Supreme Court can alter one of its earlier decisions; and Parliament by new primary legislation – but not delegated legislation (regulations, court rules etc) – can alter any of the decisions and thus revise and reform the common law.


It should be rare, therefore, that decisions are cited in family proceedings in the part of the BAILII reports entitled ‘England and Wales Family Court (Other Judges)’ – indicated by a ‘B’ added, thus [2017] EWFC B49. A 6.1 certificate will be rare, perhaps, as many circuit judges do not know of the citation practice direction. The last point adds to the confusion: if the judges do not know of para 6.1, they probably do not know they should not be referring to, or relying upon, the excepted cases in their decision-making. They fail to shorten their judgements (and perhaps save themselves time), by refusing to be referred to circuit judge cases. One of the objects of Lord Woolf’s practice direction is thereby lost.