Divorce reform, 2018 style

20160419_173301

Reducing family conflict Reform of the legal requirements for divorce, September 2018

 

(1)        INTRODUCTION: LAW ON MARRIAGE BREAKDOWN

 

Divorce reform

 

Divorce reform is proposed by the government (Reducing family conflict Reform of the legal requirements for divorce, September 2018 Ministry of Justice) (the ‘government paper’). Any question of reform raises two immediate, but separate, questions:

 

  • 1 What is a marriage; and
  • 2 On what grounds should it be dissolved?

 

This paper will answer the second question by proposing that the ground for divorce be irretrievable breakdown (as the government paper proposes); but it will touch on questions in relation to ‘What is a marriage’ first. The facts on which breakdown is based should be reformed from the present law, so that those facts are either (1) consent (ie immediate divorce on joint demand, on joint filing of a request); or (2) living apart for a year.

 

To that end divorce reform in law terms could be by amendment of the existing Matrimonial Causes Act 1973 (MCA 1973) s 1. The proposal in the previous paragraph, and as explained later, could look like this (additions (ie amendments) are the underlined passages and with the present ‘facts’ deleted):

 

Draft clause 1: DIVORCE REFORM BILL

 

1 Divorce on breakdown of marriage

(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage An application for a divorce order may be presented by one or both parties to the marriage on the ground that the marriage has broken down irretrievably.

(2) [The body [A]] dealing with an application for divorce The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless one or both parties satisfies [A] either

(a) that the parties both consent to their marriage being dissolved; or

(b) that the parties have lived apart from one another for a period or periods of one year prior to the presentation of the application 

the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

(3) On an application On a petition for divorce it shall be the duty of [A] to consider to inquire, the facts alleged by the applicant for a dissolution under paragraph (2) above into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.

(5) A divorce order shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six weeks from its grant (5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection….

 

What is a marriage?

 

First, however, it must be recalled that all this is about marriage breakdown: not any other relationship breakdown where a couple have lived together and, perhaps have children. They may have lived together, they may have gone through a ceremony of marriage in their own religious establishment; but for divorce and family finance purposes, they will not be married. Thus, something must be said about the increasing challenge raised by muddle law on what is a marriage which can be dissolved (ie when does divorce apply in the first place?). Whilst on the subject of divorce, the government should also look at the arcane – especially in terms of drafting – of Marriage Act 1949 which was consolidated from earlier legislation which dealt mostly with Christian marriage.

 

This is important. As our law stands marriage – even if it is a void marriage – is an essential pre-requisite to financial support for the economically weaker spouse (often the wife) or partner. That is to say, the benefits of Matrimonial Causes Act 1973 Pt 2 can only be used to support that spouse and any children, if the claimant spouse or partner comes within Pt 1 (ie can get a divorce, judicial separation or nullity of a marriage). None of these rights apply if there is no marriage. Should not our ecclesiastical law-based marriage laws be reviewed at the same time as divorce?

 

The government paper speaks of ‘reducing family conflict’ (its heading). It must always be remembered that English law has still not managed to find a 21st century law which deals with support for the weaker partner where couples do not marry. Most children law – eg Child Support Act 1991 and Children Act 1989 – does not distinguish between parents who are married and those who are not. This primitive area of family law needs urgent attention also; though it is not susceptible to easy law-making, as with divorce reform. A simple redraft of one section of a statute will not be enough, partly because there is almost no statutory provision for cohabitants, as yet.

 

Divorce reform

 

These questions are prompted by the government paper Reducing family conflict etc. Its object is to make divorce less acrimonious; and especially for children. It proposes to so this by amending Matrimonial Causes Act 1973 (MCA 1973) s 1, to provide still that ‘irretrievable breakdown’ is still the sole ground for divorce (s 1(1)); but it is short on proposals as to how that is to be established.

 

The paper wants to avoid contested divorces – published, as it was, in haste after the Supreme Court Owens v Owens [2018] UKSC 41. But, suppose spouse P says that their marriage has irretrievably broken down, and files a document in the appropriate registry – the Family Court under the present law – to say so. Spouse R does not agree. What is to be done then? This note contains a proposal.

 

The present law, framed in 1969 (Divorce Reform Act 1969 ss 1 and 2), provides that if P seeks a divorce she or he must prove one or more facts – adultery, behaviour of R such that P cannot be expected to live with him, desertion for two years (very rare nowadays), living apart for two years (and R consents to the divorce) and five years apart. Until Owens the vast majority – over 99% – of divorces went through undefended.

 

Before a marriage can be dissolved, what is a marriage?

 

 

(2)        MARRIAGE

 

What is a marriage?

 

There can be no divorce without a marriage. Whether or not there was a marriage depends on the formalities adopted at the time of its inception; or of any presumptions available to one or both parties as to its existence. If there is an issue as to whether there was a marriage separate from divorce (eg where a widow’s pension is claimed, if registration is doubted or in the context of immigration) application for a declaration as to marital status may be made under FLA 1986 s 55 (where inception of marriage is explained). A valid marriage must be in accordance with Marriage Act 1949 (see under FLA 1986 s 55)

 

Inception of marriage (or not) can be categorised as follows:

 

  • (1) A valid marriage is one celebrated in accordance with Marriage Act 1949; or sufficiently within the terms of the 1949 Act for the marriage to be recognised as valid (Collett v Collett[1968] P 482, [1967] 3 WLR 280, Ormord J; A v A (Attorney-General intervening) [2012] EWHC 2219 Fam, [2013] Fam 51, Moylan J (also as MA v JA)). This confers on spouses the rights which accompany marriage: eg tax benefits, entitlement to pensions, inheritance advantages etc. On breakdown of a marriage parties are entitled to seek financial provision under MCA 1973 Pt II.

 

  • (2) A marriage may be voidable or void. This happens occurs where a couple have not complied with requirements of a valid marriage (as considered further at MCA 1973 ss 11 and 12). Their union may be annulled as being a marriage which is void (the marriage is treated as not having taken place, save for MCA 1973 Pt 2 financial relief claims); or it is voidable (married till avoided). It will be open to either to apply for MCA 1973 financial provision; and they will be able to divide their assets or deal with maintenance (Akhter v Khan & Attorney-General [2018] EWFC 54, Williams J: void under MCA 1973 s 11(a)(iii)).

 

  • (3) Presumed marriage – even though formalities may not have been complied with the couple will be presumed married where validity of a couple’s marriage can be presumed by a form of ceremony and ‘cohabitation as a married couple for a substantial period of years’ (Chief Adjudication Officer v Bath [2000] 1 FLR 8, CA; Hayatleh v Modfy [2017] EWCA Civ 70).

 

Marriage Act 1949

 

The Marriage Act 1949 consolidates earlier legislation whose roots are to be found in ecclesiastical law. Part I deals with restrictions on marriage (ie capacity); Part II deals with marriage according to the rites of the Church of England; and Part III deals with marriage under a superintendent registrar’s certificate. In Part I, s 1 (prohibited degrees) and s 2 (persons under 16) state expressly that non-compliance makes a marriage void. Section 3 requires parental consent (unless dispensed with) to the marriage under Part III of a person under full age, but s 48(1)(b) makes plain that non-compliance does not invalidate a marriage. Sections 25 and 49 state expressly that a marriage is void if the parties to it ‘knowingly and wilfully intermarry’ in contravention of the requirements specified in those respective sections. A marriage which does not comply with s 49 are void, but only where ‘knowingly and wilfully’ undertaken (see eg A v A (Attorney-General intervening) [2012] EWHC 2219 Fam, [2013] Fam 51 [100]-[102]; Chief Adjudication Officer v Bath [2000] 1 FLR 8, CA).

 

A marriage is void under Marriage Act 1949 where it does not comply with one or more of the conditions in s 49 which include (adopting the numeration in the section):

 

(a)without having given due notice of marriage to the superintendent registrar;

(b)without a certificate for marriage having been duly issued, in respect of each of the persons to be married, by the superintendent registrar to whom notice of marriage was given;…

(f)in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated;. . .

(g)in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superinentdent registrar;

(gg)in the case of a marriage on approved premises, in the absence of the superintendent registrar of the registration district in which the premises are situated or in the absence of a registrar of that district; or

(h)in the case of a marriage to which section 45A of this Act applies, in the absence of any superintendent registrar or registrar whose presence at that marriage is required by that section.

 

 

(3)        DIVORCE REFORM

 

Divorce reform: government proposals

 

The essence of the government proposals is to be found towards the end of its paper, summarised as:

 

‘The Government therefore proposes to repeal the requirement for petitioners to give evidence of one or more facts and to replace it with a process of giving notice of irretrievable breakdown. In this process, the person seeking the divorce (or potentially the couple jointly) would give notice to the court of the intention to divorce, stating their belief that the marriage had broken down irretrievably.’

 

The paper goes on: ‘Irretrievable breakdown’ remains the ‘sole ground’ for divorce (p 26) as proposed by the government:

 

‘… Irretrievable breakdown would therefore continue to be the sole ground for divorce. In the two-stage decree process that we propose to retain, the court would not be able to grant the first and interim decree (the decree nisi) if it was not satisfied that the marriage had broken down irretrievably.’

 

That is uncontroversial, surely. But supposing R (the non-filing spouse) does not agree. He or she says the marriage has not irretrievably broken down. The proposals continue (pp 26 and 34): ‘The Government also proposes to abolish the ability to contest the divorce as a general rule….’. The paper goes on that it is intended ‘to remove the opportunity to contest (“defend”) the divorce because it serves no practical purpose. This has been increasingly a feature of divorce law in comparable jurisdictions.’

 

That means divorce on demand, if there is no way R can answer and respond to – or ‘contest’ – the petition. It would also be against most principles of English law and of fairness generally. European Convention 1950 Art 6 demands that anyone have a fair trial of an issue in civil court proceedings; but will divorce in any way be a justiciable issue?

 

In reality that brings us back full circle to where the law reformers were in 1969: if one person asserts something in legal or administrative terms, natural justice requires that the other party be heal in reply. In Latin the long used legal term is; Audi alterem partem (hear the other side).

 

So how does P prove ‘irretrievable breakdown’ if the consent application for divorce is not acceptable? That P should not be expected to live with R. Oh no: that is where Mr and Mrs Owens found themselves nearly two years ago…

 

Divorce on demand

 

So why does not Ministry of Justice just let P say: ‘I don’t want to be married any more’? That is then an end of it: no court fee, no administrative process. It does not matter whether P’s spouse or civil partner wants his and P’s marriage to subsist. That is it. That is what the proposals appear to say. Yes, that is what they say; but that is to point out the emperor is wearing no clothes. There would be surviving MPs (mostly conservative?) who could not stomach a bill if it said that marriage dissolution could be on demand.

 

The consultation says it does not want divorce on demand. But as at present proposed, as far as I can see, a divorce will be like buying sweets or going shopping in a supermarket (except that the filing fee (if retained) is likely to be a lot more that most supermarket expenditure). It will be a matter of asking for your divorce decree, and – as with buying (say) a Mars bar – tendering the right cash: demand (I want my marriage dissolved and here is the fee) and supply (one decree nisi, sir). That may be what the government want. It may be the right thing (I am not so sure). But let us all say so.

 

(4)        DIVORCE: REGISTRATION OR COURT PROCESS

 

Divorce: an administrative issue, with any justiciable element?

 

If there is to be any justiciable – ie tested on evidence – question of whether my marriage has irretrievably broken down then there must be a procedure which lets in an answer (defence, reply call it what you will); and a standard by which a judge can test the question of irretrievable breakdown. The question – what is meant by ‘irretrievable breakdown’; and how is it tested? – is not addressed by the paper.

 

The first stage of this is administrative; but if R contests whether or not a marriage has broken down on the new s 1 fact of living apart then that fact raises a justiciable issue, which may have to be tried; though that could still (subject to appeal) be dealt with by an administrator (ie not a judge in a court). This needs consideration in any new legislation.

 

To suggest that behaviour such that a couple cannot live together (MCA 1973 s 1(2), and in Owens) or living apart for a period (one year was proposed by Family Law Act 1996 Pt 2) may be thought old-fashioned; but could that be a starting point for saying a marriage has irretrievably broken down?

 

The present law is the same as is proposed in the consultation. ‘Irretrievable breakdown’, in 1969, seemed very modern. It reflected the fact that breakdown is often six of one and half-a-dozen of the other; at least that what I was taught at Law School. The reformers, however, had to find a way to deal with cases where that was not enough (and to answer those who opposed divorce on demand): they came up with the DRA 1969 s 2(1) ‘facts’. In 2018 the Minister of Justice will have to find a basis for proof that a marriage has irretrievably broken down, just as the reformers did in 1969.

 

A ground for divorce, with proof of breakdown

 

Divorce could be permitted on both parties agreeing that their marriage had irretrievably broken down, and upon filing a suitable notice/application in a Register Office.

 

If parties do not agree, the marriage can be dissolved on proof by one that both had been living apart for one year or more. A clause proposing simple amendment to MCA 1973 s 1 is set out at the beginning of this article (drafted originally just after Owens had been heard in the Court of Appeal). The passages underlined replace (ie amend) the present section 1. Irretrievable breakdown, and the ‘facts’ on which it is proved, go (in that respect, not unlike the government’s proposals).

 

Two facts on which irretrievable break down is based emerge from this:

 

  • Either parties can together consent to a dissolution; or
  • They can ask for a divorce, without consent of the other, after a year of living apart for a year.

 

I hope this would provide a simple means, without the need to allege fault, for parties to dissolve a dead marriage; and then to look forward to their respective futures, not back in prolonged litigation to what went wrong with their marriage.

 

For now an amendment to MCA 1973 s 1 is as in the draft clause at the beginning of this response: the facts on which you prove divorce are (1) consent (ie immediate divorce on joint demand) or (2) living apart for a year. If it was (2), R could only argue that living apart had not started when P said; and, failing that, divorce would follow after the one year period.

 

Whether this meets the welfare need of children – so far as this is necessary outside the mostly excellent Children Act 1989 and which Lord McKay’s convoluted 1996 Act was hoped to do – is another question. The paper does not in any real way address the welfare of children. Does it need to?

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Public hearings of family proceedings appeals

20160924_142217Open court principle and family courts appeals

 

In family proceedings some appeals (according to the level of court decision-maker) go either to the Court of Appeal (under Civil Procedure Rules 1998 (CPR 1998) Pt 52) or to a High Court judge (mostly) in the Family Court (Family Procedure Rules 2010 (FPR 2010) Pt 30). The level of judge an appeal goes to depends on a ‘routes of appeal’ table (not always easy to understand) in the Practice Direction (PD30A) to FPR 2010 Pt 30.

 

Appeals in the Court of Appeal are generally in public, those in the Family Court have been treated as subject to the rule that family proceedings are in private (FPR 2010 r 27.10); but since the new appeals system was set up on 14 April 2018 there has been a sporadic debate amongst judges and family lawyers as to whether appeals in family courts should be heard in private or in public.

 

From 10 December 2018 the debate is not finally resolved; but at least it has been put beyond doubt that a FPR 2010 Pt 30 family proceedings appellate judge (who will normally be a High Court judge) can order that an appeal hearing, or part of it, is to be ‘in public’. A new FPR 2010 rule, r 30.12A  is added to FPR 2010 Pt 30. This new rule does not say whether in future open court principles are to be preferred; but it puts beyond doubt the appellate judge’s powers to consider appeals in open the court.

 

The new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12A(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(c)) and to restrict publications of names of children parties and others. The rule does not say who asks for the hearing to be public; but the judge plainly has the power on his or her initiative to open an appeal hearing to the public.

 

Common law: hearings in private

 

Nothing is said in the new rule as to how the new public hearing powers are to be operated by the appeal judges. The general rule is that all hearings must be in open court. That is a very old common law principle (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417and eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618).

 

Beyond this, the common law sets out limited circumstances where the general open court rule can be overridden and a hearing be dealt with in private. These exceptions are fully summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3). Rule 39.2(3) is reproduced for certain family (ie divorce) proceedings in FPR 2010 r 7.16(3). Each of these three provisions reproduces the common law exceptions to the open justice principle (ie where cases should be heard in private); though they can most easily be seen in r 39.2 which – after recording that ‘the general rule is that a hearing is to be in public’ (r 39.2(1)) – then goes on to say where an civil case may be in private:

 

(3) A hearing, or any part of it, may be in private if –

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

(b) it involves matters relating to national security;

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

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

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

(g) the court considers this to be necessary, in the interests of justice.

 

Of that list (a), (c) and (d) would have been recognised by the Law Lords in Scott; and with the First World War just over the horizon, they would have recognised (b) very soon.

 

Rule 39.2(3) (c) and (d) would cover most family hearings today. Children cases would remain in private, save perhaps were a public body was being criticised. Many family money cases might be private where publicity might damage confidentiality. Family proceedings appeal judges could deal with Pt 30 appeals, perhaps, with the r 39.2(3) list in mind, and as their starting point for a decision on whether to open up to the public their appeal court.

Appeals in family proceedings: the rules diverge

20170407_185106Work out which court: spot the differences in procedure…

 

Rule-makers often make things needlessly difficult for parties to family proceedings. An example, for which there should have been no need if the rule-makers took a little care (and co-operated with one another) is for those involved appeals from family courts decisions. First, would be appellants in family cases, have the worry of working out which court they must appeal to – High Court family judge or Court of Appeal. Secondly, they must be clear which set of rules – Civil Procedure Rules 1998 (CPR 1998) Part 52 or Family Procedure Rules 2010 (FPR 2010) Part 30 – applies to their appeal. (The first dictates the second.) For parties who are doing their own legal work – that is, litigants in person, who account for up to 40% of appeal cases, it is said – just to start an appeal under this separation of courts and their procedures must be a challenge.

 

Beyond this there is an increasing divergence of appeals procedures for appeals in the family courts governed by the two sets of procedural rules. It should not have been beyond the wit of the rule-makers to ensure that all family proceedings appeals were governed by the same set of rules, in the Family Court, the Family Division of the High Court and in the Court of Appeal? But no. Appeals from magistrates and lesser judges in family proceedings go to higher judges, but still in the family courts. Appeals from higher family judges go to the Court of Appeal. A person appealing against any magistrate’s or judge’s decision must know to which level of court to appeal since – and this is the main purpose of this article – the first type of appeal proceeds under one set of rules (FPR 2010), and the second under other rules (CPR 1998). Each was drafted in much the same terms originally; but increasingly the framework of the rules for of such appeals is altering away from each other.

 

Appeals in family proceedings: Court of Appeal and family courts

 

First, a little history. In 1998 Lord Woolf’s rules committee published a new set of rules for civil proceedings – CPR 1998. These rules were intended to be clearer than the earlier 1965 rules, as this was mostly the case. Until 1998 all family proceedings had been dealt with as civil proceedings under the previous civil proceedings rules (Rules of the Supreme Court 1965) as varied by any relevant family proceedings rules (then Family Proceedings Rules 1991). That remained the case for family proceedings after 1998.

 

Meanwhile in 2000, a new CPR 1998 Part 52 introduced rules for appeal to the Court of Appeal. As an exception to the general rule – that CPR 1998 could not apply to family proceedings generally (CPR 1998 r 2.1(2) – Pt 52 applied to all appeals to the Court of Appeal in family cases. That remains the position with Court of Appeal appeals today.

 

In April 2011 a new set of family proceedings rules (ie FPR 2010) was introduced for all family proceedings (and to replace FPR 1991). Family cases had their own set of rules. But these rules were a mixed adaptation of old rules (such as those for financial relief proceedings which had come in with their own style of drafting and tenuous regard for the law in 1996); and of restyling of CPR 1998 (eg for interim applications (CPR 1998 Pt 30 parallel with FPR 2010 Pt 20), evidence (CPR 1998 Pts 31-35 parallel with Pts 21-25) and appeals (Part 30 as explained later)). In certain areas there were brand new rules (eg divorce (FPR 2010 Pt 7 and children proceedings (FPR 2010 Pts 12 and 16)).

 

FPR 2010 had its own appeal rules within family proceedings, namely Part 30: that is for appeals from a lesser judge to a higher, but within the family courts. Part 30 was originally modelled almost word for word on CPR 1998 Pt 52; but then it began increasingly to move away from Pt 52, though within the family courts. No longer can an appellant, or their adviser, assume that its parallel is the same as the other. Since 22 April 2014 appeals from many circuit judge and district judge decisions is to a High Court judge.

 

Three examples of the divergences between Pt 52 and Pt 30 follow.

 

Appeals practice directions

 

First, appeals practice directions. Most rules do not stand alone. They are backed by practice directions which are a form of semi-delegated legislation which exist in an ill-defined regulatory no man’s land between rules and guidance. Rules depend on practice directions for their operation, but – especially in family proceedings only – Lady Justice Hale (as she then was) has said they are ‘probably not made under any statute at all’ (Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602); though outside family proceedings they must now have the authority of the ‘Lord Chancellor’. In October 2012 the practice direction for civil appeals was amended in its entirely and was replaced with five sets of new practice directions (the first four of which can apply in family proceedings): Practice Direction 52A-52E.

 

The practice direction to FPR 2010 Pt 30 remained – and still remains – the same in outline; though it has been redrafted since the provisions in Pt 30 were introduced in April 2014 which enabled lower judge decisions to be appealled against to a higher single judge (see eg Practice Direction 30A – Appeals para 1.2).

 

Secondly, with effect from October 2016 the rules in CPR 1998 Pt 52 were completely overhauled. Most of it remained much the same; but significant provisions changed. These were not necessarily changed in the hitherto more or less parallel FPR 2010 Pt 30. For example, the new r 52.3 has deleted the right of an appellant who has been refused permission on paper by a single judge in the Court of Appeal to go back to the court itself and to ask it to reconsider a grant of permission to appeal (see discussion in Goring-on-Thames Parish Council, R v South Oxfordshire District Council [2018] EWCA Civ 860, [2018] 1 WLR 5161). Now, if you are refused permission to appeal by the judge who made the original decision and by a Court of Appeal judge on paper, that is an end of your appeal. By contrast appeals to the Family Court can be reconsidered by a judge in the appellate court (as was the old rule in the Court of Appeal).

 

Family appeals: in private or in public?

 

A third divergence is that separate rules are to be introduced for the hearing of Family Court appeals. From 10 December the family judge can order that an appeal hearing is to be in public. Most family proceedings hearings are in private; whereas almost all Court of Appeal appeals (save eg in children cases) are in open court (recently explained by Lady Justice Gloster in the Court of Appeal in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 ). A new rule – FPR 2010 r 30.12A – is to be added to Pt 30 to enable a judge to say that an appeal should be heard in open court (ie ‘in public’). The present position on open court hearings in family proceedings is not always clear. Different common law principles and court rules (in the case of family proceedings) apply according to whether an appeal is in the Court of Appeal or in the Family Court or Family Division under Pt 30.

 

For appeals which are in the family courts under FPR 2010 Pt 30, the judge is likely to expect that, in accordance with the general rule in family proceedings, most hearings will be in private (r 27.10). However, the new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(2)(c)).

 

No more is said by the new rule as to how the new open court powers are to operate. For example what factors should the judge take into consideration when deciding whether to open the court to the public? There are a number of bases set out in case law (ie common law) which suggest how a judge might decide on making the court open to the public (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417); and there are three statutory lists which develop and categorise the common law privacy exceptions (Administration of Justice Act 1960 s 12(1); CPR 1998 r 39.3(2) which is reproduced in the third list for divorces at FPR 2010 r 7.16).

 

As matters stand Family Division judges cannot decide between themselves as to when case should be in private or in public, and when parties (other than children) should be anonymised in family proceedings. We will have to see how this rule – which must surely operate to mirror common law provisions generally? – beds down; and how it is operated by the High Court judges who sit on these family proceedings appeals.

Domestic abuse in the family courts: how can proceedings be made more civilised? (2)

20160419_173301Domestic abuse: making proceedings less frightening

 

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in private (ie in secret). The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court (as explained in an earlier post here).

 

Yes, but if domestic abuse proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly in court – the abuse she complains of? This post explains that some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other such procedures are available in criminal proceedings, but are still not available to the Family Court to help domestic abuse complainants.

 

This post will assume that the complainant partner or spouse is (as is mostly the case) the mother. The father has been responsible for domestic abuse (violence, controlling behaviour and so on). The question of whether a hearing should be in open court was considered by me here; and what is meant by ‘domestic abuse’ as the law now stands was considered here).

 

In the first post I explained why I thought that in law domestic abuse proceedings should be in open court; just as a prosecution for a criminal offence arising from the same facts would be publicly dealt with. To help complainants there are a range of family courts procedural features which must also be considered (and which are I hope, being considered by Home Office reformers as I write):

 

  • 1 In all Family Court hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 2 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

Other fair ways to provide evidence

 

The conventional way for any case to be dealt with is for parties to proceedings and any witnesses to put their evidence in writing (a statement) to the court. That is their evidence in support of their case (evidence in chief). In practice judges like to hear a bit more from the parties and their witnesses. In some cases parties – parents, say, in a dispute about where a child should live – may be asked to say more about the background to the case and their feelings about their children and where they should live.

 

Giving evidence must be bad enough in any proceedings; but where you are being told that it is for you to convince the court that your individual claims are true (where your former partner disputes what you are saying) it must cause even more anxiety. And then for that evidence to be required to be given in front of the person who you say has abused you.

 

There are ways a person can give that evidence in chief by using evidence they have recorded with the police (called ABE (‘achieving best evidence’) evidence). ABE evidence is mostly obtained during initial police investigations. This is used routinely for a child’s evidence in care proceedings. In criminal proceedings it can also be used for evidence from adults. There is no reason in principle why it should not be used as evidence obtained from adults in family proceedings; but I suspect it rarely, if ever, is. And, by extension, there is no reason why adult ABE evidence cannot be used where solicitors – very carefully, and without leading questions – have recorded their client’s evidence. Is this ever done?

 

Next, evidence can be given in court by video-link where the complainant is in a different room from her former partner; but many courts do not have the equipment. How many lawyers challenge HMCTS to equip themselves properly so evidence can be given in this way? Evidence can be given from behind a screen so the complainant need not see her former partner.

 

All of these are there in the law – not just the rules – for parties to use. Might they help a frightened complainant to give evidence?

 

An advocate to ask questions for an allegedly abusive partner

 

A next procedural problem may arise. Suppose the former partner is unrepresented. He has no lawyer as many will not have. He will not be eligible for legal aid.

 

He is entitled to cross-examine the complainant and challenge her as to the truthfulness of what she has said to the court. That is truly to make her relive the abuse: a High Court judge has recently commented of a case ‘It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross examined by an alleged perpetrator.’ That judge had to sit through a hearing – children proceedings, not domestic abuse – and hear the woman being shredded by her former partner. To deny it would be to deny the partner a right to cross-examine which would be to deny a fundamental legal right.

 

It will not surprise readers of this post to find that criminal cases are well ahead – 20 years ahead – of family proceedings. In criminal court there is a scheme, which was copied for family proceedings in Prison and Courts Bill cl 47. Clause 47 was lost with the 2017 election and is under review in the Home Office – we are told – now.

 

The criminal scheme makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. Thus, in criminal proceedings, an accused cannot then, by law, cross-examine the complainant. The court must then ‘invite’ the accused to instruct an advocate. If he refuses – he cannot, or will not pay, for example – the court must consider whether it is necessary for the witness ‘to be cross-examined by a legal representative appointed to represent the interests of the accused’. If that happens the court must then consider appointing an advocate to ask questions of the complainant (or accuser/witness in criminal proceedings).

 

None of this is going to make it any easier for a complainant to appear in court; but, whether or not proceedings are in open court, the procedural points considered in this post might at least make it a little less unpleasant for her than it must be in most cases now.

 

Why does the Family Court hear domestic abuse cases in private? (1)

20170722_161644Domestic abuse and children

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in secret. The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court. But, it is said, if proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly – the abuse she complains of? Some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other procedures are available in criminal proceedings, but are still not available to the Family Court. This and a second post examine these issues.

In her Guardian article, ‘Why do we separate the mother and child victims of domestic abuse’ (20 November 2018) Louise Tickle drew attention to the dire circumstances of mothers who lost their children because of domestic violence. This might be to the care of a local authority. A judge in care cases (she suggests it is quite frequent) ‘is told that the mother has “failed to prioritise her children’s needs over her own”. Social services know perfectly well that the abuse isn’t the victim’s fault – but, they tell the court, she’s the only protective factor in her kids’ lives. And she’s failing at it.’

 

This post will assume that the complainant partner or spouse is (as is mostly the case) a mother. The social services department, if involved, assumes that the children will remain with her. The father has been responsible for domestic abuse (violence, controlling behaviour and so on: a subject considered by me eg here and here (in relation to ‘open court hearings’)).

 

The treatment of a complainant parent in the way described by Louise Tickle way is, as the Guardian says, ‘grotesque’. And it is grotesque on a number of levels. This and a following post look will look at three features of the way domestic abuse cases are dealt with by the family courts, namely:

 

  • 1 Claims by mothers are being dealt with in private (or secret). This is probably unlawful. Criminal proceedings on the same domestic abuse facts are dealt with in open court; so that the ‘grotesque’ features described by Louise Tickle go unchecked.
  • 2 In all family courts hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 3 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

The first question, which this post seeks to address, is that of private family courts. (Meanwhile domestic abuse proceedings are the subject of Home Office consultation (previously discussed by me here).) The procedural matters which arise from the second two questions will be dealt with in a separate post.

 

At present the abused parent – in the procedure discussed by Louise Tickle – applies to the Family Court for a non-molestation order. If the complainant proves she has been ‘molested’ (ie made the subject of domestic abuse) she will have an injunctions (a court order which tells her former partner not to ‘molest’ her); and her former partner may also be excluded from their home (if he is still there). If he breaches the orders – ie is responsible for further abusive behaviour, which is proved – he may be sent to prison (though this is often not until after a number of successive complaints to the Family Court have been made by a wife/mother).

 

Meanwhile, says Louise Tickle, ‘children are being taken into care in unprecedented numbers, and losing their human right to live with their birth families because women are being blamed, rather than helped. Removing children from mothers suffering domestic abuse prioritises short-term safety over the much bigger win that would help keep a family physically and psychologically intact in the longer term.’

 

Open court or private hearings

 

So should cases be heard in open court? And if not, why not?

 

Domestic abuse proceedings are ‘family proceedings’ (ie they deal with issues which need to be resolved for a broken family). Family proceedings are dealt with in private (ie no one but the parties and court staff etc) can go into court. This privacy is required by the court rules. For good measure the rules say, in the part which deals with domestic abuse, ‘applications for an occupation order or non-molestation order will be in private’. But is this the law?

 

It is an old rule – what lawyers call ‘trite’ law – that a court rule cannot override the law. A court rule is not law. It can only dictate how the procedure which defines the law is to operate. Thus, the common law says that all court hearings shall be in open court, with certain long-standing exceptions (listed later).

 

In 1913 in a family law nullity case, where a husband had said he did not want everyone to know he was incapable of sex with his wife, the House of Lords said to him, ‘tough’; only a limited band of cases (and his was not one) could be heard privately (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). In 1913 this limited band was as Lord Shaw said (echoing the words of other law lords), confined to three categories of case which are (adopting the terminology of the time): ‘The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention — trade secrets — is of the essence of the cause.’

 

To this list the common law in 2018 has added

 

  • Matters relating to national security
  • Proceedings concerning confidential information, where publicity would damage that confidentiality
  • An interim hearing where publicity would be unjust (eg the recent Philip Green Court of Appeal hearing and Peter Hain)

 

None of this list of six categories of case – which still represent the law over 100 years later – includes domestic abuse, whether in the Family Court or in any other court. But can the rule makers (who are entirely undemocratic) change the common law. No, they are not. Subsequent Supreme Court authority has confirmed that. Only another decision of the Supreme Court or a statute can change what is in the common law.

 

Why hearings in open court?

 

The reason for open court hearings has been explained by judges frequently. Recently in a case where the Guardian sought documents from a magistrates’ court extradition hearing (which the Court of Appeal agreed the Guardian should have) Lord Justice Toulson said of ‘open justice’: ‘The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.’

 

The judge continued: ‘Jeremy Bentham explained this: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”’

 

And surely this statement from Jeremy Bentham is why, in principle and subject to protection for the complainants (to be discussed in the second post), that domestic abuse hearings should be in open court? They would be dealt with in open court before a jury on the same domestic abuse facts. Provided that the welfare and anonymity of any children involved is protected – as it is in the Crown Court – then the law (ie as distinct from the rules) is, I believe, that these proceedings should be in open court.

 

If judges and local authorities are behaving as Louise Tickle says they are; or if violent men are being dealt with leniently; and all this is being covered up or glossed over because of the secrecy of Family Court proceedings, then the way in which these cases are dealt with in the family courts should, surely, be seriously questioned. The first thing is to ask: does the law say these cases can be dealt with in private; and if not to open up domestic abuse courts to Benthamite publicity. This is what I believe the common law requires.

Mr Justice Mostyn on the repulsive practice of modern slavery

20170407_185106‘A brutal form of organised crime’: Home Office and ‘subsistence’

 

In K & Anor, R v Secretary of State for the Home Department [2018] EWHC 2951 (Admin) (8 November 2018), Mostyn J, sitting in the Administrative Court, dealt with a case concerning modern slavery and the extent to which the UK Home Office complied with internationally agreed obligations for the UK ‘to provide support and assistance to victims of trafficking’ ([4]); and to which the Home Office actions breach the European Convention 1950 rights of the victims not to be discriminated against.

 

In so doing, Mostyn J exposed the ways in which the Home Office deals with victims of modern slavery, including (as more fully explained below):

 

  • No statutory guidance was issued by the Home Secretary as to financial support for victims of trafficking; though Modern Slavery Act s 49(1) says this ‘must’ be done; though internal staff guidance was provided.
  • The contract between certain victims to reduce their subsistence was changed by the Home Secretary unlawfully and unilaterally; on a ‘false basis’ and without proper reasons being provided.
  • The term ‘subsistence’ was unfairly treated and in a repressive way.

 

The complexity of the scheme operated by the Home Office must be born in mind in what follows. It cannot be easy to wade through it for an experienced adviser. How much more so much more so for the victims themselves? Does this unfairness in itself amount to unfairness?

 

Financial support for the victims of the ‘malignant practice’ of modern slavery

 

On 1 March 2018 the weekly cash amount payable to those entitled to payments was cut by 42% from £65 to £37.75. The claimants in K said the cut was unlawful. Mostyn J showed why this was indeed so and sturdily criticised the Home Office’s meagre financial support for victims. Mostyn J characterised modern slavery as ‘a repulsive, strikingly malignant practice, as damaging in its impact on its victims as was its historical predecessor’ ([2]). Modern Slavery Act 2015 is Parliament’s recognition of this, the explanatory note to which includes:

 

‘Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. [It] takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life.’

 

Mostyn J listed from the explanatory note in the Act the international instruments on trafficking to which the UK was committed. These include obligations to provide financial assistance for victims. The first step to such assistance was Modern Slavery Act 2015 s 49(1). This imposed on the Home Secretary a duty to issue guidance in relation to identifying and supporting victims (see [4]). No such guidance had been issued under s 49(1); though internal Home Office guidance had been issued to staff which told them, said Mostyn J:

 

[9] … Under this guidance the claimants, as potential victims of trafficking, are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance. These benefits or services are provided by means of a contract entered into between the Home Secretary and the Salvation Army….

 

Two points are confirmed here: that the Home Office accepts the entitlement of victims to certain ‘subsistence payments’; and that these will be administered for the Home Office by the Salvation Army. These payments are provided by a contract (‘the Contract’) between the Home Secretary and the Salvation Army (as explained by Mostyn J at [10] and [11]). Clause 37 – not an insignificant document to be read and understood (or deemed to be so, no doubt) by the victim – enables the Contract to be varied by the Salvation Army by notice; and only ‘in emergency’ by the Home Office.

 

Illegal reduction of rates by Home Office

 

The case arose from the fact that the Contract specified rates of payment to different categories of victims (known by the Home Office as ‘service users’). As Mostyn J pointed out (at [13]), the proposed payment ‘is non-means-tested. The victim of trafficking gets these sums irrespective of whether he or she is receiving, for example, voluntary payments from a kindly relative’. The Home Office however, decided that it wanted to reduce rates under the Contract and did so, with effect from 1 March 2018, by means of a ‘Contract Change Notice’ (CCN) sent by email to the Salvation Army as follows:

 

[19] … The email stated: ‘please find attached a revised CCN on the immediate changes to subsistence rates … we’d like to get this implemented as soon as possible’. The attached draft deleted the third class of victim [ie the ‘service user accommodated [and receiving] subsistence payments] referred to above and stated instead “when a service user is receiving financial support from the asylum support system, under the Asylum Support Regulations 2000, they are not entitled to receive any additional income above the level set in regulation (sic)”. This in turn was followed by further revised Contract Change Notices on 1 and 16 February 2018. The latter became the final version.

 

This change ‘was duly signed by the Salvation Army; of course, they really had no option but to do so’ ([20]) said Mostyn J. He continued: ‘the procedure was not compliant, in any respect, with Schedule 6 of the Contract’. The Home Office decision under review followed: ‘From 1 March 2018 the cash provided to the claimants was cut by £27.25, or 42%’ ([20]). And the result: ‘[21] … This was a very substantial cut imposed unilaterally by the Home Office’; though it seems that in [their counsel’s] skeleton argument the Home Office tried to palm off the decision as ‘taken independently by [the Salvation Army], without instruction or direction from the [Home Office]. Manifestly, the decision was taken by the Home Office…’.

 

Thus, ‘the decision was taken on a false basis and cannot stand’. The decision ‘was a partial implementation of a policy which had been announced on 26 October 2017’. However it was:

 

[22] … not done in a procedurally correct or fair way, and was dressed up as a rectification of a mistake. In public law terms the decision can be characterised as irrational and perverse, as well as being outside the tightly confined variation power within the contract.

 

‘Subsistence’ and its meaning in the context of victims of trafficking

 

Mostyn J explained that what the Government had done was to set up a ‘machinery for determining whether someone is a potential or actual victim of trafficking’ (at [9]). This is regulated by internal guidance. Claimants ‘are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance’. So what was the meaning of ‘subsistence’ in the trafficking Directives? Mostyn J replied:

 

[25] … ‘Subsistence’ when used in [Directives] is a heavily nuanced concept capable of different meanings in different contexts. It does not necessarily mean… that subsistence is that minimal sum necessary to stave off destitution.

 

So, he said, ‘subsistence’ in this context meant ‘a more expansive view of “subsistence” than the minimum sum needed to stave off destitution’ (at [27]). He continued:

 

[30] It follows that I do not agree that there is, to quote the author of the Ministerial Briefing of 24 October 2017 (see para 18 above), ‘no clear justification to explain why the state gives potential victims of modern slavery substantially more subsistence than people in asylum accommodation’. On the contrary, I think there are very good reasons why there should be….

 

Discrimination and European Convention 1950 Art 14

 

Mostyn J concluded his judgment by dealing with human rights issues (at [33]-[41]). ‘Discrimination’, he said, ‘happens when like cases are treated unalike or when unalike cases are treated alike’ (at [34]). He continued by holding that ‘[34] … Both kinds of discrimination were caused in this case by the contract change of 1 March 2018’. For discrimination to be justiciable, however, the facts of a case must come within one or more of other European Convention 1950 Articles.

 

Mostyn J explained this by reference to Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 where Lady Hale (for the majority) said that Art 14 ‘[16] … does not presuppose that there has been a breach of one of the substantive Convention rights, for otherwise it would add nothing to their protection, but it is necessary that the facts fall “within the ambit” of one or more of’ the substantive rights (see eg Inze v Austria (1988) 10 EHRR 394, at [36]). So in McLaughlin, said Lady Hale, ‘it is clear that the denial of a contributory social security benefit falls within the ambit of the protection of property in A1P1: see Willis v United Kingdom (2002) 35 EHRR 21,…’.

 

In K Arts 4 (prohibition of slavery and forced labour) and Protocol 1 Art 1 (peaceful enjoyment of possessions) both applied. So, said the judge:

 

[37] … I am in no doubt Article 4 does indeed carry with it the positive obligations to provide appropriate support and assistance to the victims of the conduct which is referred to there. I am in no doubt at all that Article 1 of the First Protocol is engaged. The claimants had a pecuniary entitlement under the contract which was abruptly abated. I cannot see how this does not fall squarely within Article 1 of the First Protocol.

 

Home Office decision-making and lack of reasons

 

In K there had been no reasons given for the change of rates of payment to victims (for a recent example of the necessity for reasons, there in the case of child asylum seekers affected by a decision, see R (Help Refugees Ltd) v The Secretary of State for Home Department & Anor [2018] EWCA Civ 2098 ‘children from Calais “jungle”’. No reasons were given to K since the Home Secretary made no decision at all (see [40]).

 

In no sense, said Mostyn J, could the Home Secretary’s discrimination against those affected by modern slavery be ‘objectively justified’ (at 40]). That position was reinforced by the fact that the Home Office, late in the day, had conceded the point by agreeing to amend the contract: ‘the Home Secretary has sold the pass on the question of discrimination’ (at [41]).

 

The decision to implement the contract on grounds of discrimination against those affected was also quashed with effect from 1 March 2018 ([43]).

Evidence in family proceedings: recent case law and comments

20160419_170156Burden of proof in family proceedings

 

The law of evidence is mostly defined by the common law. The common law can only be changed by statute or by higher common law authority. Court rules may define the common law, but they cannot change it (see eg British South Africa Co v Companhia de Mocambique [1893] AC 602). This article considers a few recent case law and other developments in the law of evidence in relation to family proceedings.

 

First the burden of proof: as is well-known, this generally falls on the party who asserts facts in issue. The burden must be established to the civil standard: that is that a fact is more likely to have happened than not. In Re A (Children) [2018] EWCA Civ 1718  the issue before the Court of Appeal was ‘whether the judge [below] fell into error in the findings he made in relation to certain medical evidence and, thereafter, failed properly to consider the totality of all the evidence prior to determining that the outcome of the case had to be decided in percentage terms by reference only to the burden of proof’ (at [5]). In considering this issue, Lady Justice King explained that the judge below had relied on A County Council v M & F [2011] EWHC 1804. In that case Mostyn J had assessed the burden of proof in mathematical terms. He had considered the views of Lord Hoffman and Lady Hale on standard of proof in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 [2009] 1 AC 11, [2008] 2 FLR 141; and then quoted himself (at [16] and in an earlier case of in AA v NA and Others [2010] 2 FLR 1173) where he had said: ‘a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential “cogency”’.

 

In Re B (above) Lord Hoffman used a mathematical metaphor – no more – to explain operation of the burden of proof:

 

[2] If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.

 

It was the burden of proof and how this should be treated which had to be decided by the judge below in Re A (Children) [2018] EWCA Civ 1718.

 

Court of Appeal: standard of proof in family proceedings

 

King LJ was not able to ‘agree’ with the judge’s approach which, she said, had been adapted from Mostyn J. The judge had assumed that ‘the use of percentages and or “aggregation” is the proper approach to the judicial function in respect of the simple application of the balance of probabilities’ (at [51]). This was incorrect. King LJ continued (at [52]) by stating that the starting point for definition of the standard of proof ‘remains the test as articulated by Lady Hale Re B (Minors) [(above)]’. This includes the following:

 

[70] My Lords, for that reason I would… announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

 

In Re A it had been necessary to establish how a 10 year old child had died, whether this threatened her siblings and therefore who of the pool of possible perpetrators may have been responsible for her death. King LJ cited with approval the discussion of burden of proof in Nulty Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 (later than Mostyn J’s decision) which included, per Toulson LJ:

 

[35] The civil ‘balance of probability’ test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a ‘preponderance of the evidence’. In the British Commonwealth the generally favoured term is a ‘balance of probability’. They mean the same.

 

In Re A King LJ therefore concluded on the standard of proof and Nulty that:

 

[58] … (iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.

 

The judge had fallen into error said the Court of Appeal. The case must be remitted for rehearing ([59] and [63]).

 

Fabricated evidence on assets; but no extravagance add-back

 

R v K [2018] EWFC 59 (4 September 2018: R v A in the BAILLI case reference), Baker J is, inevitably, long on factual analysis and modest on enunciation of legal principle. The central evidential issue was whether the husband and his business associates had fabricated or exaggerated the husband’s liabilities (around £20M), in an attempt to defeat the wife’s claim. On the evidence he had heard from the alleged lenders Baker J held that the loans were not proved. He treated them as not existing and distributed the couple’s assets accordingly. His judgment included such comments as:

 

[189] Drawing all these threads together, I have reached a firm conclusion that the loans alleged to been made by C Finance are a fiction. The truth is,… that [the husband] has procured the assistance of his acquaintances and offshore associates to try to create evidence to defeat the wife’s claim. I accept that sums may have been transferred from C Finance and U Properties to the husband but not under the loan agreements alleged by the husband and the other witnesses. Something else was going on. I am not going to speculate what it was. It is sufficient merely to conclude that the assertion that the husband owes substantial sums to C Finance under the alleged loan agreements is untrue.

 

A second factor in the case was the husband’s continuing extravagant lifestyle. There were substantial arrears of payment of periodical payments; but to award arrears and to add back an equivalent figure (per eg Norris v Norris [2002] EWHC 2996 (Fam), [2003] 1 FLR 1142, Bennett J) might risk double-counting: if H had paid the periodical payments he would have had to curb his extravagance. Baker LJ explained this:

 

[137] (7) … The husband’s conduct in this case was wanton and deliberate dissipation of assets at a point when he should have been paying maintenance to the wife. But if I were to include the figure claimed for addback, as well as the full arrears of MPS, there would in all probability be an element of double recovery. If the husband had paid the sums due under the MPS order, he would not have been able to spend money on himself in the same wanton way. Accordingly, in this case, I do not think it appropriate to take the figure claimed for ‘addback’ into account as well as the MPS arrears when assessing the appropriate level of the lump sum.

 

Litigation privilege reviewed and revived after SFO v ENRC

 

The subject of litigation privilege (LP) in children proceedings rests, it can be argued, on shakey – albeit House of Lords – foundations. In Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 (over a strong minority objection from Lord Nicholls, supported by Lord Mustill) the House of Lords held that care proceedings were not ‘adversarial’ (see further at Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis especially at paras 16.16 to 16.30). Therefore – despite there being nothing in eg Children Act 1989 on the subject – LP did not apply in care proceedings. (Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, CA, probably obiter, seeks to extend this to all children proceedings.) Re L says that for whoever a lawyer acts, if the court has given permission for opinion evidence (Children and Families Act 2014 s 13; Family Procedure Rules 2010 r 25.4) then in children proceedings there is no confidentiality between the lawyer, the client and the court as to production of the report in court.

 

Re L does not apply to non-children proceedings. In such family proceedings and in civil litigation generally, Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 considered whether LP where a corporate body obtains legal advice and its staff are involved in giving information to a legal adviser. LP was extensively reviewed (judgment was jointly by Sir Brian Leveson P, Sir Geoffrey Voss Chancellor of the High Court and McCombe LJ).

 

ENRC were anticipating an enforcement raid by SFO. They were carefully considering self-reporting under SFO guidelines and set in motion extensive enquiries as to the background. This involved mostly members of ENRC’s own staff. SFO finally decided to ‘accept ENRC for criminal investigation’: that is to pursue their enquiries further. SFO demanded the documents arising from their legal advice. ENRC asserted advice privilege and LP for documents which had arisen in their internal enquiry. At first instance, Andrews J held that none were covered by privilege. The Court of Appeal allowed ENRC’s appeal. All, save a couple of emails, were covered by LP. Advice privilege did not therefore arise. The ‘dominant purpose’ (of the documents and litigation) test in Waugh v British Railways Board [1980] AC 521 applied to the ENRC lawyers’ documents.

 

Subject to Re L overriding of LP in children proceedings – if it does – the SFO v ENRC explanation of LP could apply, for example, to papers in a local authority or other public body office; and certainly to any advice given to social, education and health workers.

 

Police disclosure

 

In Re H (Children) [2018] EWFC 61 Sir James Munby (following his retirement and sitting as a High Court judge) accepted the invitation from a local authority counsel’s invitation to look at the delay in care proceedings caused by delayed production of documents by third parties (considered recently in ‘Who must disclose what & when?’, David Burrows NLJ [2018] 5 October at 9)  notably the police. Sir James considered this as follows:

 

  • 1 What can the family court do to avoid delay caused by concurrent care and criminal proceedings?
  • 2 What can the family court do when delay is caused the failures of other government departments?

 

The problem was delays in production of documents by non-parties, such as police, to care proceedings. It was not, said Sir James, any ‘part of my proper functions… to conduct some general investigation into the actions of third parties… (whether the police, the CPS the Crown Court, or the housing authority)’ nor to look into their actions or inactions may have contributed to what seemed to be ‘wholly unacceptable delay’ (at [18](i)).

 

So what could the family courts do? First the courts cannot tell non-parties, especially public bodies, what to do (the A v Liverpool principle): that is, as cited by Sir James (at [20]): ‘The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority (per Lord Scarman in A v Liverpool City Council [1982] AC 363)’. Sir James explained this further:

 

[22] … A family court cannot dictate to another court or agency how that court or agency is to exercise its powers. It follows, secondly, that, absent statutory provision to the contrary, the ambit of family court judicial decision-making is constrained by the extent of the resources made available by other public bodies. So, the family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade. How far can persuasion go? The answer is that the family court can seek to persuade but must not apply pressureHolmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 (at [38]-[39] per Lady Hale).

 

Witness summons and police evidence

 

Sir James says that the court has powers as to issue of a witness summons (at [31]) under the jurisdiction conferred by Matrimonial and Family Proceedings Act 1984 s 31G (that part of MFPA 1984 which brought in the Family Court). This section does not create a jurisdiction which was not there before. It merely re-enacts County Court Act 1981 s 55 which deals with witness summonses in the county court. The meat of provision for issue of a witness summons asserts the common law (formerly the subpoena, in this case ad duces tecum (to bring with you a document)) and is in FPR 2010 r 24.2 (derived from Civil Procedure Rules 1998 r 34.2) and PD24A para 1. All this is for a party to the case to require a non-party – such as the police – to produce documents following the steps prescribed by FPR 2010 r 21.2 (derived from CPR 1998 r 31.17).

 

Section 31G does not, as far as can be seen, give a judge a free-standing power to call for evidence. The disappointing approach of the police to producing evidence into court proceedings, and of which Sir James complains (understandably) – eg under 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings October 2013 – can probably only be corrected on application by application by a party to proceedings for a subpoena to produce documents under r 24.2.

 

Expert evidence and fees for experts

 

In an early statement by the new President of the Family Division, Sir Andrew McFarlane, he drew attention to how the fees payable to expert paediatric and other witnesses have been ‘eroded’ over time. Speaking to the  Bond Solon Experts’ Conference in early November he went on: ‘The provision of high-quality professional expertise, where a court has held that such expertise is “necessary” so that the issues relating to a child’s future can be determined “justly”, is plainly essential.’

 

The legal position is that the opinion (or ‘expert’) witness is in a privileged position. He or she is there to provide the judge with an independent view of the issues or of contested facts in the case; and the expert must do so regardless of who pays his/her bill (CPR 1998 r 35.3(2); FPR 2010 r 25.3(2) and common law). The expert is thus the witness of the court; though the court has virtually no control over what the expert is paid. Mostly children cases, to which Sir Andrew was referring, are governed by legal aid. On legal aid, the instructing solicitor applies for payment; but the fees were fixed in 2013 (under Civil Legal Aid (Remunerations) Regulations 2013 (CLARR2013)).

 

What Sir Andrew was too polite to say was that the fees were already low in 2013. They are not index-linked and have not been raised since 2013. Though the expert is responsible to the judge, his/her fee cannot be raised by the court (ie only by the ‘Lord Chancellor’ in ‘exceptional circumstances’: CLAGRR2013 reg 2(1); that is to say by the often charmless Legal Aid Agency). Is it not small wonder that the difficulty in finding experts and of resultant delays represents another nail in the coffin of the Minister of Justice’s approach to legal aid and family courts proceedings?

 

David Burrows

15 November 2018