Rights and an English divorce

Mrs Owens and the Supreme Court

 

Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of a circuit judge and the Court of Appeal (Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74) to find that, though her marriage had unquestionably broken down, she failed to prove that her husband had behaved in a way which showed that she could not reasonably be expected to live with him.

 

The relevant law is set out at Matrimonial Causes Act 1973 s 1. There is one ground for divorce: either party to a marriage can petition for divorce (A) ‘on the ground that the marriage has broken down irretrievably’; but a court can only say there is irretrievable breakdown if one of five ‘facts’ are proved including (s 1(2)(b)): ‘that the respondent [(B)] has behaved in such a way that [A] cannot reasonably be expected to live with [(B)]’.

 

Though they considered that Mrs Owens’s (ie A’s in her case) marriage had broken down irretrievably, the Court of Appeal felt unable to say that she could not be expected to live with Mr Owens (see eg comment at ‘Owens: a dead marriage but no divorce’ [2017] New Law Journal 31 March, David Burrows; and here). The logic of the court’s conclusion, based only on the words of s 1, is difficult to follow. But what of its logic, in terms of Mrs Owens’s personal – or ‘human’ – rights (under European Convention 1950 and generally)?

 

European Convention 1950 and Mrs Owens’s rights

 

In Owens Sir James Munby P commented on Mrs Owens’s advocate’s assertion that European Convention 1950 Arts 8 and 12 supported her case. He said, of Mr Owens’s reply to this assertion, with which he agreed, that there is ‘no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings’.

 

Art 12 declares that those of ‘marriageable age have the right to marry’; and nothing is said of divorce. Art 8 deals with respect for a person’s ‘private and family life [and] his or her home’. Sir James described Mrs Owens’s advocate’s argument under Art 8 as:

 

[54] … He invites us to consider what level of ‘fault’ must be established to obtain a divorce and whether dispositive, or at least greater, weight should be given to the petitioner’s wishes and feelings. More profoundly, he invites us to consider whether the requirement to prove ‘fault’ is consistent with Articles 8 and 12

 

If this was the advocates’ argument it was, indeed, an odd line for him to take. Section 1(2)(b) does not require anyone to prove ‘fault’. It asks an open question: has a spouse behaved in such a way that the other spouse cannot live with her or him? That need not be because they are at fault. It requires proof only that B has acted in a way that A ‘cannot reasonably be expected to live with’ B. A must be able to say that her marriage is dead (as in the Owens case, and as the court found). Each party surely should then be able to move on?

 

Respect for ‘private and family life’: rights to privacy

 

If European Convention 1950 is necessary to all this, Art 8 seems to me to be relevant. I cannot see that Art 12 has any relevance. It is difficult to see how respect for a person’s ‘private life’ (‘private and family’ are disjunctive: they mean two different things. They are not both part of the same concept) is consistent with requiring either party to a dead marriage to going on living with the other spouse (as the court knew was likely to be the effect of their decision for Mrs Owens).

 

Looked at as a question of right separate from European Convention 1950, it is necessary to find a duty to which the right is corollary (or reflective). Do I have a duty to live with someone I no longer want to share a home with? If there is no marriage the answer is resoundingly: no. If I am married to that person, why is my duty any different? If it is different, does not the right not to be discriminated against (Art 14) apply (marriage is an ‘other status’ as referred to in Art 14).

 

In law spouses must make arrangements for financial support for one another (or the court can order it: Matrimonial Causes Act 1973 Pt 2). That is a statutory duty bred of a right to financial support from the weaker spouse (the same does not apply if we are not married). That right would be protected – enhanced even – if Mrs Owens’s marriage is dissolved.

 

But to find – as did the Court of Appeal – a right vested in Mr Owens to expect of Mrs Owens a form of conjugal cohabitation (and thus no right in Mrs Owens to claim financial support till her marriage is dissolved) is not in any statute. Is such a right implied by English law? That it is, is the logic of the Court of Appeal’s decision.

 

Does the requirement to live in an unwanted and loveless relationship interfere with a person’s ‘family life [and] home’? Common sense – and, it must be hoped, the law – must surely say ‘yes’? If MCA 1973 s 1(2)(b) says what the Court of Appeal says it says – and I do not think it does require them to find as they did in Owens – then Mrs Owens needs also to seek a declaration of incompatibility with her rights (in Arts 8 and 14) under Human Rights Act 1998 s 4.

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Rights: privacy, anonymity and freedom of expression on family cases

‘Open justice’ in family proceedings

 

As a High Court judge (Mostyn J) has commented (in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) rights to open justice in family proceedings are a mess; though – sad to say, and as will be seen below (the Carmarthenshire case) – he has done his own bit to stir the muddled pot.

 

Family lawyers are debating whether financial relief hearings (an important part of the family courts’ work) should be in open court or in private (as FPR 2010 r 27.10 – though without any statutory or common law underlay) says they must be. Different Family Division judges take different views (and Mostyn J is one of the noisier ones on the subject).

 

Three cases in the last month remind lawyers generally of the variety of application of open justice principles:

 

  • The predominant issue is whether a case should be heard in public as common law has long required (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and see eg ‘To be heard in the dining hall…’: Scott 100 years on). Subsidiary to this are, for exampe:
  • Anonymity for a party to proceedings; or to a witness or others (eg expert witnesses, social workers etc) involved in the case (eg Khuja below);
  • Release of court and other hearing documents (a consequence of the Carmathen case below);
  • Publicity for a private (eg children) case (and the balance to be struck between privacy (European Convention 1950 Art 8) and freedom of expression (Art 10) (eg Southend case below).

 

Khuja : ‘what’s in a name?

 

Khuja v Times Newspapers Ltd [2017] UKSC 49 relates to the open justice principle and a person’s involvement – though not charged – in criminal proceedings. Charges arose from facts which are directly of concern to family lawyers, namely child sexual abuse (see eg Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam), [2015] 2 FLR 763 Keehan J). As Lord Sumption said (giving judgement for the 5:2 justice majority):

 

[1] For some years The Times and other media organisations have taken a close interest in investigating and reporting on allegations that the police and child protection authorities have failed adequately to confront a pattern of crime involving the sexual exploitation of vulnerable young teenage girls by older men. It need hardly be said that this is a subject of serious public concern. It has given rise to a number of government-ordered national inquiries, a review of standards of protection in children’s homes, and substantial changes in the procedures of the police and prosecuting authorities for handling such cases.

 

Nine men were tried on charges involving organised child sex in the Oxford area. Seven men were convicted. Khuja had been arrested, but not charged. After his release without charge, the newspapers successfully applied to lift an order preventing his identification. Khuja wanted to maintain a reporting restrictions order. The newspapers said that Khuja was ‘someone suspected by the police of being involved in sexual offences against children’. They wished to publish information about him ‘confined to material derived from the proceedings at the trial’ (§[4]).

 

The majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed: Lords Kerr and Wilson were the minority) noted that the appellant was seeking to prohibit the reporting of matters discussed at public trial. These were not matters where he had any reasonable expectation of privacy. The impact on the appellant’s family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family.

 

The public interest in allowing the press reporting of court proceedings extends to the appellant’s identity, said Lord Sumption. Media reporting of cases depends on the right of the public to be informed about public acts of the state, balanced against the law’s recognition that how a story is presented is a matter of editorial judgment.

 

Finally, what does a name matter? ‘What’s in a name? asked Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (and see Lord Sumption at §[29]). Lord Rodger answered himself:

 

‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, §[39] … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, §[59], ‘judges are not newspaper editors’.

 

Parents’ right to petition Parliament: Southend case

 

In Southend Borough Council v CO [2017] EWHC 1949 (Fam) MacDonald J considered a case in which parents of two children on whom placement orders had been made had publicised information about them on Facebook and had organised a petition on Change.org.  (Whether the mother had appealed against the placement order was not entirely clear to the judge.) By the time he came to deal with the case the parents – representing themselves – had agreed to the local authority’s application that information be removed from Facebook and other media. However, the mother insisted on their right to pursue their petition ‘addressed to the United Kingdom Parliament and the Prime Minister’. The consequences of any such right for freedom of expression was the issue on which MacDonald J gave judgment.

 

MacDonald J described Change.org as a ‘website that allows people or organisations to start a petition. Once a petition is started, members of the public can sign the petition electronically subject to providing their first and last name, their email address and their postcode’ (§[9]). It has ‘community guidelines’ which include particular reference to safeguarding children and their protection.

 

The local authority based their application on their concern to protect a child’s private life. The mother wanted the petition to remain in place ‘so that she could have her say with respect to a decision that she does not agree with’ (§[16]).

 

After an extensive review of the law, the judge agreed with the mother. The reporting restrictions order remained to the extent agreed between the parties, but not including any restriction on the mother’s right by her petition to advertise her disagreement with the court’s placement order decisions.

 

Right to freedom of expression

 

On the facts of this case (not as a general approach to on-line petitions: §[66]) the judge set out his decision at §[62]. He balanced the rights of the parents to freedom of expression under Convention Art 10 (especially ‘parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress’) against the Art 8 right of the children. He applied the ‘ultimate balancing test’ or proportionality (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at §[17]) and held that:

 

[62] … It cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

 

Release of hearings documents

 

The third case is little more than a post-script in all this; but it provides a useful illustration of some of the points considered in ‘Release of court hearing documents’. What documents – when and why? – may a court release to non-parties. What rights to freedom of expression (European Convention 1950 Art 10) do parents have?

 

In Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017), Mostyn J considered a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings, but he does not say so). This might have been clearer if Mostyn J had remembered – or been reminded by one of the nine barristers in court – of the following comment of his:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at §[16]). In law, there are real question on this as explained in ‘Release of court hearing documents’ (above). Thus, in Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1, Mostyn J was dealing with an application by the press for reporting restrictions to be lifted for the ancillary relief hearing of well-known musicians (and see Mostyn J in DL v SL [2015] EWHC 2621 (Fam); [2016] 2 FLR 552, also reported as L v L (Ancillary Relief Proceedings: Anonymity)  [2016] 1 WLR 1259). Save to a very limited extent (eg photographs of arrival at court) a reporting restrictions order was retained. Mostyn J [2015] EWHC 2689 (Fam) at [12] and [13], adopts Sir Mark’s “watchdog” role for the press:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR  r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly.

 

I think Lords Scarman and Bingham – and probably Sir James Munby P (see eg Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, Munby J – would have reminded Mostyn J of the importance of helping the press, in its ‘watchdog role’ – to make sense of proceedings. Transparency in the family courts remains a poor shadow of what it could be if – even if they are let in – the media and public can make no sense of the facts of what is going on.

 

And in terms of rights? The media have rights to freedom of expression as much as do parents to petition parliament; so long as, in each case, the children invloved remain anonymous.

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

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

 

A child’s rights to express a view

 

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

 

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

 

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

 

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

 

UN Convention rights

 

The UN Convention Art 12 says the following:

 

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

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

 

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

 

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

 

Mature child in court proceedings

 

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

 

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

 

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

 

(1)        Public law proceedings

 

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

 

(2)        Private law proceedings: parents’ application

 

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

 

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

 

(3)        Child’s private law application

 

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

 

(4)        Child joining in proceedings

 

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

 

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

 

(5)        Child abduction proceedings

 

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

 

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

 

Court procedure

 

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

 

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

 

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

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

A child’s rights to express a view

 

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

 

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

 

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

 

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

 

UN Convention rights

 

The UN Convention Art 12 says the following:

 

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

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

 

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

 

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

 

Mature child in court proceedings

 

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

 

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

 

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

 

(1)        Public law proceedings

 

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

 

(2)        Private law proceedings: parents’ application

 

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

 

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

 

(3)        Child’s private law application

 

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

 

(4)        Child joining in proceedings

 

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

 

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

 

(5)        Child abduction proceedings

 

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

 

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

 

Court procedure

 

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

 

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

 

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

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

 

EU withdrawal – children’s rights to ‘express their views’

Children and EU Charter of Fundamental Rights: rights to be lost?

 

This article looks at children’s rights in legal proceedings which will go with EU withdrawal; and which can only be replaced if MPs specifically take steps to create new law. If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than is promised by English law as it now stands.

 

It is not always well-known that EU has its own human rights charter: Charter of Fundamental Rights of the European Union (2000/C 364/01) , much of which is modelled on the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In certain important respects it develops the European Convention 1950, especially in the field of children’s rights (which have no direct mention in the 1950 Convention).

 

The Charter will go with EU withdrawal; so will the children’s rights which it protects be replicated in English law – so far as English law is now different? In certain crucial respects it is fundamentally different as will be explained.

 

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

 

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

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

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

 

Children’s views, according to age and maturity

 

This article looks at the meaning and effect of Art 24.1: ‘They may express their views freely. Such views shall be taken into consideration… in accordance with their age and maturity.’

 

United Nations Convention on the Rights of the Child 1989 Art 12  – by which UK will still be bound, so far its provisions are enforceable – is in similar terms to Art 24 of the Charter as to a child’s right to be heard in ‘judicial proceedings’: that is ‘to express… views freely’; and for them to be ‘given due weight [according to the child’s] age and maturity’ (Art 12.1).

 

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

 

‘Right to participate’ in proceedings about the child

 

In Re D Ryder LJ in the Court of Appeal treated the child as having ‘the right … to participate in the process that is about him or her’ (§44); but only because of EU legislation. He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case.

 

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). This provision – which is central to English law on this subject and to this article – seemed radical when made law in 1989. Looked at in the light of EU legislation it has a somewhat shop-worn and conservative air. Section 1(3)(a) says:

 

(3) [When the court is considering making an order about a child it] shall have regard in particular to –

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

 

 

This, said the judge in Re D [2016], was a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded (emphasis added):

 

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

 

In practice the questions of whether a child should meet a judge state a view to him or her is left to non-statutory GuidelinesGuidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 – issued by an unofficial non-statutory body (albeit approved in case-law). It is now seven years old and states its purpose as being ‘to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings’. There is no reference to any rights for children; still less to either Art 24 (or to the UN Charter).

 

Child’s right to be heard: nothing to be ‘given’

 

If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than this. This is because of:

 

  • Children Act 1989 s 1(3) gives the court only an option to consider my views;
  • The Guidelines give me no reassurance that English judges realise that I have rights (if I want to express my views); not that they have the option whether or not to receive my views; and I would prefer that those rights, in statute, be referred to in statutory guidelines, not the informal 2010 Guidelines.
  • I am afraid my worries would not be made less by a speech of a leading family judge King LJ ‘Giving children a voice in litigation: are we there yet’ , a speech given in November 2016. If a child has rights, there is nothing for judges to ‘give’. Theya re entitled to have their voice heard say Art 24 and Art 12; but this is not what English law on its own says.

 

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2007] 1 FLR 961 the House of Lords was dealing with an 8 year old. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

 

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

 

All of this – from Art 24 to Lady Hale’s views in Re D [2007] speak for a child’s right – emphasis on ‘right’ – to be heard. Just as the English judiciary have done so far, the wording of Children Act 1989 s 1(3)(a), as I read it, comes well short of a right. As the ‘guidelines’ say, it is up to the judge to decide: no question of a child’s ‘right’. By contrast the Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 and 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’) eg Art 23 each guarantee rights and participation. That will go with EU withdrawal unless it is reproduced in UK legislation. (And this is before we look at what will be lost to children and others involved with EU withdrawal with the loss of the reciprocal arrangements in Brussels IIA.)

Dear Lord Chancellor – ‘domestic abuse’: time for a consistent approach in English law

A modern definition for Ministry of Justice

 

The Prison and Courts Bill clause 47 helpfully deals cross-examination of complainants as witnesses in family law domestic abuse proceedings.

 

The Sentencing Council have rephrased its proposed Guidance with the proposition that ‘domestic abuse’ replace ‘domestic violence’ as the criterion which – if accepted – should guide judges in sentencing of offenders http://www.sentencingcouncil.org.uk/wp-content/uploads/Intimidatory-offences-Consulation-Paper-WEB.pdf. A definition suggested by the draft Guidance is set out at the end of this letter. This is based on the Council’s view that the Guidance should be revised:

 

‘… to reflect the important changes in terminology, expert thinking and societal attitudes over the last ten years, in this important area of sentencing. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that both physical violence and controlling and coercive behaviour constitute abuse in domestic settings.’

 

Meanwhile family courts forms adhere to the old-fashioned ‘domestic violence’ terminology; and Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 12 adheres to the more restrictive, ‘domestic violence’:

 

Victims of domestic violence and family matters

12(1)Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

A definition of ‘domestic violence’ was added in 2013 by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 http://www.legislation.gov.uk/uksi/2013/748/article/4/:
‘“domestic violence” means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;’.

 

This sounds to me as if abuse is an aspect of violence – which it can be; but that a Legal Aid Agency decision-maker could say that the more extensive definition (ie domestic abuse) is not comprised always in the more restrictive (ie domestic violence).

 

The wider spectrum of domestic abuse is applied to children and ‘vulnerable’ adults (LASPOA 2012 Sch 1 para 3); but not to others in a family relationship. Is that a fair assumption?

 

Time for reform: Prison and Courts Bill

 

Is it not time to amend the narrower, unfair (to the person abused) and out-moded definition – namely ‘domestic violence’ – in legal aid legislation, family law forms and in any other circumstances? The wider ‘domestic abuse’ would be applied always for grant of legal aid? You would have one consistent set of terminology for all relevant circumstances.

 

If you agree is not the Prison and Courts Bill a good opportunity to do this?

 

Yours sincerely

 

 

 

David Burrows

 

 

Scope of the [Sentencing Council] guideline

 

  1. This guideline identifies the principles relevant to the sentencing of cases involving domestic abuse. There is no specific offence of domestic abuse, it is a general term describing a range of violent and/or controlling or coercive behaviour.

 

  1. A useful, but not statutory, definition of domestic abuse used by the Government is:

 

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.

 

  1. Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.

 

  1. Coercive behaviour is an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

 

  1. The Government definition includes so called ‘honour’ based abuse, such as female genital mutilation (FGM) and forced marriage. Domestic abuse occurs amongst men and women, people of all ethnicities, sexualities, ages, disabilities, immigration status, religion or beliefs, and socio-economic backgrounds. Care should be taken to avoid stereotypical assumptions regarding domestic abuse.

No-fault divorce: 2017

Time to re-think no fault divorce after Owens

 

The fate of the unfortunate Mrs Owens and her refused divorce set me thinking about the need to review our divorce laws, especially if Mrs Owens’s case represents how senior judges say our divorce laws should work. I had thought that since the 1970s most people, if they want a divorce, could get one. Not so Mrs Owens (Owens v Owens [2017] EWCA Civ 182), whose unreasonable behaviour petition was dismissed on the assessment of a circuit judge and of the Court of Appeal (Sir James Munby P, Hallett and Macur LJJ) namely four elderly, white, middle class individuals, two of each gender.

 

In the final analysis the issue involves an application of law to facts, and then imposing a subjective judicial view of what is can ‘reasonably’ be put up with in a marriage. But first what could fairly be the law on what should bring a marriage to an end?

 

A much simpler scheme might be

 

  • That if parties agreed they could file a mutual petition confirming that their marriage be dissolved (this still cannot be done under the modern law);
  • For those who do not agree irretrievable breakdown would be presumed after one year of living apart; and
  • The ability would be there (unlike now) to apply to the court for financial provision at any time (now you have to wait till you can file a divorce petition before applying to unravel or to reconfigure your family finances).

 

The last time law reform was attempted – Family Law Act 1996 Pt 2 – it was highly complex, involved the then fashionable ‘information meeting’ (Prince Charles was getting divorced at the time: would he have to attend such a meeting?); and it was never brought into operation (ditched finally by Children and Families Act 2014). So the law remains as in 1969 with divorce allowed on one ground – irretrievable breakdown – to be established on one or more of five facts: adultery, unreasonable behaviour, desertion for two years, and living apart for two (with consent) or five years.

 

Irretrievable breakdown and no divorce?

 

And what of Mrs Owens? She is locked in a dead marriage and blocked from divorce – it might be thought – by a narrow view of the present view legal issue. ‘On any view, the marriage is over’ said Hallett LJ (§102); and the other Court of Appeal judges agreed. Mrs Owens’s marriage has irretrievably broken down (Matrimonial Causes Act 1973 s 1(1)). But she cannot be divorced. Can this be what Parliament intended when the Divorce Reform Act 1969 (now consolidated into MCA 1973) found its way onto the statute book?

 

We are entitled to ask; for can Parliament really have intended that irretrievable breakdown might not lead to divorce? Could those 1969 MPs have thought that a marriage which was dead could not – by one of the facts under s 1(2) – be dissolved. I doubt it. But Parliamentary intent was not amongst questions the Court of Appeal judges seemed to ask in their 100+ judgment. Yet they were entitled to do so. Indeed it is arguable that they had the duty so to do. The court is permitted to look not just at the words of a statute but at the Parliamentary intent behind the when an Act was passed (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924).

 

The law: irretrievable breakdown, unreasonable behaviour

 

The law on divorce and unreasonable behaviour is in MCA 1973 s 1, namely:

 

‘(1) …a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

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

 

The effect of this is that if one spouse (A) wants a divorce immediately they must have a spouse who is willing to admit adultery (s 1(2)(a)); or to allege successfully – as Mrs Owens failed, in law, to do – that their spouse (B) has ‘behaved in such a way…’ etc. What is to be ‘reasonably… expected’ is entirely subjective. It depends on what an individual judge thinks on the day is to be ‘reasonably… expected’; or, put another way: how much must A put up with? And what might those MPs in 1969 have expected A – or, for that matter, Mrs Owens – to put up with.

 

Then turn the question around. Ask deductively, as the judges did not do: if a court finds a marriage to be dead, does that not prove that at some level someone – eg B – must have behaved in a way that A ‘cannot reasonably be expected to live with’ B. Munby P scratched at this point in §37 when he set out a test for unreasonable behaviour: ‘what is proved to have happened in this marriage’ and ‘having regard to the cumulative effect’ of B’s conduct has B behaved in such a way that A cannot reasonably be expected to live with B?

 

But Sir James did not look at the other end of the telescope. If a marriage has broken down, is it not reasonable to say that someone must have behaved in a way that the other cannot be expected to live together: a process of deductive reasoning. MCA 1973 is an ‘always speaking’ statute which must be seen in the light of how a reasonable person would see its words in 2017 (§§39 and 41), said Sir James. But no, the judges seem to think, the law calls for feats of Victorian stiff-upper lip fortitude from parties to a marriage, where one wants a marriage not to be dissolved.

 

But we are allowed to ask: even in 1969 would the MPs who passed the original divorce reform Act have expected Mrs Owens to remain married to, and living with, her estranged husband. I doubt it.