Child’s views and court proceedings

EU Charter of fundamental rights and children

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Charter of Fundamental Rights of the European Union is to go on European Union ‘exit day’: ie the day that EU withdrawal finally happens and whatever other terms – or not – are negotiated by the politicians. Clause 5(4) of that the European Union (Withdrawal) Bill says: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. That means the EU Charter no longer be part of English law once ‘exit day’ has happened.

 

So what has that got to do with children law? For children themselves the EU Charter – though hesitatingly applied by judges and family lawyers – means a lot. That is because Art 24 of the Charter says that ‘in all matters which concern them’ children are entitled to ‘express their views freely’. As relevant here Art 24 says:

 

1 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.

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….

 

As I will show, I do not think the statute law which English judges apply goes as far as that; though judge-made law – perhaps, and as explained below – will incorporate the equivalent of Art 24 into English law. Before I move on, however, I must also introduce United Nations Convention on the Rights of the Child 1989. This is an extensive set of aims for rights of a child to which UK is a signatory; but it is not enforceable in English courts. It does not have the force of law which – while it lasts – the Charter has.

 

‘Procedural rules of national law’ and UN Convention

 

The UN Convention Art 12 says:

 

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.

 

Even if it were enforceable in English law, UN Convention does not go as far as the Charter. Most important the views of a child – ‘opportunity to be heard’ – are of use under Art 12 only so far as a country’s ‘procedural rules’ apply. That is a get-out provision for a Government. A country has only to say, we don’t have appropriate ‘procedural rules’; and that can a child having any right to be heard. And – surely a matter of shame for English family lawyers? – it must be said that the English ‘procedural rules’ are sufficiently muddled (see eg Children Act 1989 ss 10(8) and 41 and Family Procedure Rules 2010 Pt 16) and indistinct, that it may be possible to say to a child that, as English law stands, there are no procedural rules by which a child may be heard; or am I being too harsh? That must be reviewed on another occasion.

 

The question which this article addresses is: how far will the spirit of Art 24 remain part of the common law – ie part of English law and to be applied by English judges – for children and in proceedings about them?

 

The importance of Art 24 is emphasised by Brussels IIA (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction… in Matters of Parental Responsibility ), which will also go on exit day, unless all EU family courts can come to an agreement by then – hardly likely, I fear – as to it future. Within Brussels IIA, its recital (33) says of Art 24 within the Regulation:

 

(33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union…

 

And then Art 24? Children ‘may express their views freely’. Will this passage survive EU withdrawal; and if it does so how is it to be operated more clearly than has been the case up to now? How will children know if it may apply to them; and how may they take advantage of it: in the sense of being able to say to say to someone? As a child, I have a right (by one means or another: see Lady Hale in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 at [59]) to say what I think about all this and to talk to the judge who is to decide my future.

 

Art 24 as common law; and ‘a fundamental principle of procedure’

 

Art 24 was considered by the Court of Appeal in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 alongside Children Act 1989 s 1(3)(a) (that in making a decision about a child the court must have in mind the child’s ‘wishes and feelings’ according to their age and understanding). The court was considering the future of a seven year old (David) in the context of Brussels IIA (due to go with EU withdrawal as well). The English court needed to consider whether a Bulgarian return order should be enforced in the UK; and for this a question was, had the Bulgarian court had given David ‘an opportunity to be heard’ (Brussels IIA, Art 23(b)). If they had not, was this ‘in violation of a fundamental principle of procedure’ of the UK?

 

David had not been given such ‘opportunity’ said Ryder LJ; this was not in accordance with the fundamental procedural principles (s 1(3)(a)) of English courts; so the Bulgarian order would not be enforced here. The Supreme Court gave leave to appeal, but set aside that decision: Re D (A Child) (Supreme Court: Jurisdiction) [2016] UKSC 34, [2016] 2 FLR 379, [2016] AC 1117): they had no jurisdiction to hear an appeal under Brussels IIA. The common law remains as set out Ryder LJ’s judgement (and see discussion of this in ‘Children’s Views and Evidence’, David Burrows, Bloomsbury Professional at Ch 4).

 

There is a respectable argument for saying that the Re D approach applies in all children cases where their views should or can be heard by the court ([41]-[44]). Said Ryder LJ:

 

[44] … 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…relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

Children’s rights: new statute law, or a Henry VIII power

 

And that assertion from Ryder LJ is premised on Art 24. So what happens when Art 24 goes? Ryder LJ’s approach remains the common law, even without underpinning from Art 24. Without the clear line set out by the Court of Appeal English children in family proceedings are left only with the permissive approach suggested by s 1(3)(a) and quasi-legislation (albeit endorsed by Family Division judges) set out in Family Justice Council: Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 (prepared after Re D (Abduction: Rights of Custody) (above)). This sets out ‘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. As can be seen Art 24 is much stronger – that is, pro-child – than that.

 

As the source of a right, and as previously set out in Art 24 and as confirmed in Re D, Family Justice Council ‘guidelines’ (even as backed by s 1(3)(a)) are a pallid imitation. As a document offered by English law to guarantee my rights if I were a child affected, I would feel insecure; especially if I was watching the EU Charter boat (with Art 24 aboard) sailing back across the Channel. And I would not be confident that – even as far as it goes – the ‘guidelines’ provide the ‘procedural law’ required by UN Convention Art 12.2.

 

If the common law is not thought to be as expressed by Ryder LJ, I would urge the Ministry of Justice to put the matter beyond doubt, before exit day for the sake of children. Most of the drafting has been done: it’s there in Art 24.

 

And it needs primary legislation. Rules or a practice direction are not enough. Or could it be set out as an early an early example of a Henry VIII power with the new Minister of Justice performing the role of the Tudor monarch….

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Help for vulnerable witnesses and children in court proceedings

The BBC reported on Wednesday  that there is a shortage of intermediaries for help of vulnerable witnesses ‘to give evidence to police and court’; and that some intermediaries are refusing to help because of late payment by the police.

 

In criminal proceedings – not yet in family or other civil proceedings – the court can order ‘special measures’ for a child or vulnerable witness (eg someone suffering from mental incapacity, or scared of facing their alleged abuser). This can include having their evidence pre-recorded or having someone with them in court to help with deafness or other communication difficulties (‘an intermediary’). These have been in place – or intended to be in place – for criminal proceedings since 1999.

 

Even this assistance for children, parties and witnesses has not been available in family proceedings – domestic violence, child abuse, or communication difficulties (eg deafness), unless a witness brings their own help. Any payment for help will come from the child or vulnerable person (unless they have legal aid).

 

Since November 2017, a scheme for ‘intermediaries’ has been introduced by court rule. It applies to adults only. The new rule says in terms it will not be paid for by Ministry of Justice; though help is paid for in criminal proceedings. That is the case even if they are suffering from incapacity or have been abused by a former partner.

 

And what about children in family proceedings? Nobody knows (though ‘children’s views’ are part of the EU Charter proposed to be scrapped under Brexit). Recommendations were made in early 2015 by a committee chaired by two judges. This was for a scheme similar to criminal proceedings. Three years later and the Ministry of Justice is still silent on reforms for children…

 

EU Charter of rights and children

A child’s Charter rights which will be lost

 

The Observer today reported that clause 5(4) in the European Union (Withdrawal) Bill which proposes to abolish Charter of Fundamental Rights of the European Union (‘the Charter’) will create a substantial ‘human rights deficit’. It will leave ‘many different groups in society without adequate protection’. Clause 5(4) is in brutally clear terms: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. This article concentrates on children’s rights under the Charter which will go on exit day.

 

An important means of protecting rights – apart from those rights already enshrined in a variety of other legislation and in the common law – is European Convention 1950. This is incorporated, most of it, into English law by Human Rights Act 1998. However there are two substantial qualifications to the importance of European Convention 1950, which the Charter helps to resolve. First, Human Rights Act 1998 does not override an Act of Parliament; though it can enable judges to declare them incompatible with the European Convention 1950. Secondly, the Charter’s protection means that if there is a conflict between basic rights contained in the Charter as against an Act of the Westminster parliament, the Charter – as EU law – will prevail over the Act.

 

Thus if there is – as there may be – a conflict between Children Act 1989 s 1(3) and Art 24 of the Charter for children rights, then the Charter will prevail; unless clause 5(4) becomes law when, after exit day – when UK leaves the EU – the Charter exits too.

 

Children law an EU withdrawal: out with the Brexit bathwater…

 

An area of law which will be appreciably affected in a number of ways by EU withdrawal is children law, in particular where they and one of their parents are living in UK, and the other is in a EU member state. That is a subject which is beyond the scope of this article. I want to concentrate here only on the Charter; and referring only to law which does not remain part of English law. Art 24 of the Charter is concerned specifically with children’s rights (as is, though in slightly different terms, United Nations Convention on the Rights of the Child 1989 Art 12).

 

Under European Convention 1950 children do not have specific rights. Like anyone else a child has rights under the Convention, such as to respect for the child’s private life (Art 8); but a child does not have the specific rights protected by Art 24.

 

Charter of Fundamental Rights of the European Union Art 24 says:

 

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.

 

EU Charter Art 24: children to express views freely

 

I have broken this Article down into its component rights and have set out the Charter rights – ie part of English law as it now stands; and nothing to do with European Convention 1950 human rights. Alongside the Art 24 rights I have shown the parallel English law right – ie all that will remain if the EU Charter is abolished by the Brexit law (as under cl 5(4)). Where there is a blank there is no equivalent provision in English law; though plainly the right at 1 is the subject of a substantial part of a variety of legislation, including local authority involvement with children under Children Act 1989 Parts 3 to 5. It is the right to express views (at 2) which is unique to the Charter:

 

  Charter of Fundamental Rights of the European Union Art 24: children’s rights English law Source of English law
1 Children have a right to such protection and care as is necessary for their well-being    
2 Children may express their views freely    
3 Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. When a court is 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) Children Act 1989 s 1(3)(a) and (4)
4 In all children cases… the child’s best interests must be a primary consideration. When a court determines any question with respect to – (a) the upbringing of a child; or the child’s welfare shall be the court’s paramount consideration. Children Act 1989 s 1(1)
5 Every child shall have the right to maintain a personal relationship and direct contact with both his or her parents, unless that is contrary to the child’s interests A court is entitled to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. Children Act 1989 s 1(2A)[1]

 

Child’s views, according to age and maturity

 

The passages in Art 24 with which I am concerned here are at 2 and 3; since 2 is not re-produced in English law in terms which are, in effect, mandatory as is the case in Art 24. If a child wants to express a view, the child ‘may’ do so; and means must be found to ensure this. Even now that is not done properly in English children proceedings. The provision at 2 in the table does not exist in English law, save – whilst the Charter remains part of English law – in Art 24.

 

The importance of Art 24 has been asserted by the Court of Appeal in a judgment approved by the Supreme Court in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 where Lord Justice Ryder explained why a seven-year old Bulgarian child should have had ‘an opportunity to be heard’. This does not mean the child necessarily has to appear in court; but the ‘opportunity’ must be there which it had not been in the Bulgarian courts.

 

The terminology ‘opportunity to be heard’ derives from EU legislation – 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 – to give it its full title; generally known as ‘Brussels IIA’, or Brussels IIR. That legislation will also go with EU withdrawal, a fact which was noted (at para [71]) by the Supreme Court in the Gina Miller case (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583).

 

The alignment of Brussels IIA and the Charter will be considered in another article. For now it is sufficient to say that Brussels IIA as part of its preliminary provisions includes:

 

(33) [Brussels IIA] recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union,

 

Views: an opportunity to be heard

 

So, said Ryder LJ, in Re D (above) that the child’s right to an opportunity to be heard is a ‘child-centred issue’. It ensures that the child is engaged in the process and is accorded due respect in that process. It is thus part of the rule of law in England and Wales that a child has the right to participate in the process about the child (emphasis added) he said, and then continued:

 

[44]  … 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 (my italics).

 

To me this issue turns on the two forms of legislation at 3 above. Childrens’ views shall be taken into consideration on matters which concern them in accordance with their age and maturity, is the EU Charter version. English law says that when making  a decision about a child’s future the court ‘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)’.

 

To me – and I am trying very hard not to load my pro-European views onto this – the English version of the law, from a child’s point of view, is appreciably weaker under Children Act 1989 s 1(3)(a). A child’s ‘wishes and feelings’ are but one of six factors to be considered by the court. None of the six are to be given priority. In EU law the child has a right – unconditionally – to have his or her views taken into account (if that is what the child wants).

 

Under the EU withdrawal bill those child’s rights will go. Children Act 1989 s 1(3)(a) will be all that is left to protect such rights as children are accorded by family courts.

[1] Added by amendment by Children and Families Act 2014 from April 2014

Privacy, the common law and a celebrity divorce

Court divorce papers: how private?

 

Under the headline ‘Jamie and Louise Redknapp’s divorce papers to be kept secret as a judge blocks the release of documents’ the Transparency Project reported last week-end that a London court had ‘blocked the release of papers that would normally be made public and he has not given a reason why’. The Daily Mail, TP said, had complained: ‘A judge has thrown a blanket of secrecy over the’ couple’s divorce. TP replied resolutely:

 

‘What rubbish. A judge has probably refused to allow the press access to something that they weren’t entitled to in the first place and that they knew and the judge knew and we all know probably contains nothing of… public interest. What do the Family Court rules (FPR) allow the press to see? The short answer can be found in rule 29.12 which basically says – if you aren’t involved in the case you can have nada, unless the judge agrees.’

 

I do not believe the answer is as simple as that. The question of release of these documents involves a legal whirlpool fed by at least three conflicting cross-currents:

 

  • The open justice principle
  • That court rules cannot change existing law or create new law
  • The meaning of ‘privacy’ in 2018

 

Privacy, in the case of a ‘celebrity’ – as Mr and Mrs Redknapp are described – creates its own subsidiary question: to what extent is ‘privacy’ consistent with the symbiotic relationship between press and people like the Redknapps?

 

Open justice principle

 

The common law applies to all aspects of English law, save where it is changed by statute. In R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 the Court of Appeal considered whether a newspaper could have released to it papers considered by a magistrate’s court district judge in relation to extradition proceedings. The judge said she could not release papers; and the Divisional Court agreed with her.

 

Toulson LJ gave the main judgment in the Court of Appeal which he started as follows:

 

[1] 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. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘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.’

 

Toulson LJ continued

 

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

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

 

And in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (a case about anonymity and terrorism) Lord Roger commented:

 

[63] What’s in a name? ‘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.

 

Press freedom and privacy call for a balance to be struck.

 

Human rights

 

To affirm all this, not only does the common law open justice principle ‘let in the light and allows the public to scrutinise the workings of the law, for better or for worse’ (see Toulson LJ above); but it is demanded by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 6.1. This requires all court hearings to be in public; but with certain limits. These limits are summarised in the latter part of Art 6.1 as:

 

1 … The press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

In English common law the position is best summarised by CPR 1998 r 39.2(3); and for this article it is suggested that these limitations operate for all court proceedings (criminal, civil or family). If a case comes within this list application can be made to claim privacy for any hearing, even though it might otherwise have been heard in public:

 

(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; … or

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

 

Privacy is bolstered by European Convention 1950 Art 8, that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

 

However, the right – countervailing that of privacy – is for all of us, that of ‘freedom of expression’ (Art 10). This protects private individuals, press and social media alike. Thus, ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…’.

 

None of these takes priority one over the other (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591); but it is clear that the courts will generally strongly influenced by the Convention emphasis on freedom of expression (Human Rights Act 1998 s 12(4)).

 

Rules cannot change the law

 

The second cross-current is that a court rule cannot change the law. Family proceedings are governed by Family Procedure Rules 2010 which are written by a group of civil servants and practising lawyers (given powers to do so by Courts Act 2003 ss 75-76). They are not considered by MPs but are dealt with by the negative resolution procedure (Courts Act 2003 s 79).

 

The aim of the rules is to define how courts should apply the law (procedure). Whether or not documents (eg a divorce petition) should be released to a non-party is an example. If a rule says something different from the common law, the rule is wrong; and there is certainly nothing in those rules ‘expressly permitting’ that the rule makers can alter common law principles.

 

That this is not possible, constitutionally, is confirmed by for example Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale in the Supreme Court said:

 

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

 

Generally proceedings under FPR 2010 are heard in private (FPR 2010 r 27.10); unless the rules say something else. Proceedings under FPR 2010 Pt 7 (mostly for divorce) are to be heard in open court (r 7.16(1)), save in the circumstances listed in r 7.16(3) (which provides a list similar to CPR 1998 r 39.2(3)) which sets out when court hearings, otherwise open, may be in private.

 

This is openness subject to the condition that only certain information may be publicised by the printed press (publisher or printer) Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b). But what is meant here by a ‘hearing’ and, subject to that, what documents can be released to those who attend court?

 

A side comment on this is provided by r 29.12(2). If there has been a hearing in open court anyone can ask for a copy of the order made. In the case of divorce proceedings this is unremarkable. A divorce order is in rem: it speaks to the world. This tells us nothing about whether, for example, a journalist can obtain a couple’s divorce petition and if so, to what extent his or her newspaper can publish anything.

 

If the journalist can obtain documents – as could the Guardian in the Westminster Magistrates’ case – is it consistent with the right to respect for a couple’s private life that they should be allowed to publish (European Convention 1950 Art 8.1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457)? If no, does it make any difference that one or both of the couple concerned are ‘celebrities’ (ie spend much of their life developing a symbiotic relations ship with the press, as in Naomi Campbell’s case)? Probably not; but this is part of a much wider subject, and must be the subject of a separate later article. In the meantime, what can be released to non-parties: that is to anyone who is not a party to the proceedings?

 

Divorce papers and release of hearing documents

 

What court documents – such as divorce papers which set out why one party says he or she should not have to live with the other – should be permitted for release? The law is unclear on this (as explained in my ‘Release of family courts hearing documents’).

 

Here an odd statutory side-wind blows in. Even if a journalist sits in court for a divorce (and very few divorces are ever heard in open court, since only defended divorces involve a full hearing) he or she still cannot publish any but the most basic information about the proceedings. A little known statute – Judicial Proceedings (Regulation of Reports) Act 1926 (considered more fully here) – at s 1(1)(b) says that a newspaper or printer who publishes anything about a divorce except basic information (such as names, addresses etc of the parties and details of legal argument and judgement), may be prosecuted (if the Attorney-General agrees). This was at a time when radio (‘wireless’ as it was then) journalism was little known; and television and social media not dreamed of. Only print media are caught by s 1(1)(b). It does not catch the rest of us nor other media.

 

What we know so far is that court orders can be released and that court hearings are in open court. The law is that a non-party – such as the Mail – must apply for documents. This was established by the Guardian v Westminster case; and backed up by NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J. If application is made, the Mail must explain why it wants the documents. As Toulson LJ (with whom Lord Neuberger LJ and Hooper LJ agreed):

 

[85] In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

 

It may be worth adding that as Hooper LJ pointed out (at [95]), the position on disclosure in criminal proceedings (then Criminal Procedure Rules 2011 r 5.8(7) now 2015 r 5.7(5)) is:

 

If the court so directs, the court officer will— (a) supply to the applicant, by word of mouth, other information about the case; or (b) allow the applicant to inspect or copy a document, or part of a document, containing information about the case.

 

This is supplemented, as Hooper LJ points out, by a note that the supply of information may be affected by European Convention 1950 Arts 6, 8 and 10 ‘and the court’s duty to have regard to the importance of— (i) dealing with criminal cases in public, and (ii) allowing a public hearing to be reported to the public’. It will be recalled that, as ever, it is the same common law which regulate criminal and family proceedings.

 

If the Mail gets them, they cannot print more than names, addresses and the judgment. So far as rules say anything else – eg that non-parties cannot even apply for documents or information (which some judges think is what the law says) – the rules are unlawful. Guardian v Westminster makes it clear that the court must consider any application and deal with it on its merits and according to the individual facts of the case. In the case of the Redknapps the district judge had to make deal with the application and give reasons for his decision (FPR 2010 r 27.2(3)).

 

Privacy and the ‘celebrity’ divorce

 

The basis for that district judge decision brings in the final cross-current: privacy. This is a relatively new principle of English law, derived partly from our common law rules about confidentiality and partly from European Convention 1950 law. It was most famously considered in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 when Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; and the House held (3:2) that her privacy had been breached. Secretly the Mirror had arranged for photos to be taken of her. These were published them with further stories about her drug habit (which up till then she had publicly denied). She was awarded £3,500 damages.

 

The House asked: what privacy was she entitled to expect, even as a very public person (‘celebrity’) and although the Mirror were putting the record straight on her drug habit. Despite these two points, there was an extent to which she could expect privacy said the two lords and a lady. If I were asked I would say the Redknapps were entitled to privacy with their divorce papers; and that the district judge could say so.

Protection of public morals: a view from 2018

Protection for the divorcing public; or ‘troublesome irrelevance’?

 

I have spent 45 years as a family lawyer; and until this week-end I had not read – save fleetingly – the single section Judicial Proceedings (Regulation of Reports) Act 1926. Under the impetus of the case referred to here I now find that I should have paid more attention.

 

Subliminally I was perhaps aware that my guru Dr Stephen Cretney has said that the 1926 Act was ‘an occasionally troublesome irrelevance’; and that Sir James Munby P, after quoting Dr Cretney, suggested (at [28] in Rapisarda v Colladon (In the matter of 180 Irregular Divorces) [2014] EWFC 1406, [2015] 1 FLR 584) that ‘Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified’. Both these eminent family lawyers regard the Act as largely a waste of statute-book space.

 

This may be so. However it imposes limitations on the media and other publishers of printed information (but not eg users of Facebook or Twitter or other ‘social media’) which form a useful undertow to more conventional open justice principles in Matrimonial Causes Act 1973 divorce etc and Civil Partnership Act 2004 proceedings. Generally speaking, a defended divorce must be in open court (FPR 2010 r 7.16(1)). An open court hearing means the press is entitled to ask for – and generally to receive (see eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343; NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J) – documents referred to in court. That might include lurid statements of the matrimonial life of any ‘celebrity’ – what exactly does that word mean? – who is unwise enough to defend his or her divorce.

 

‘Injury to public morals’: unlawful printing or publication

 

So what is the 1926 Act all about? Its objective is set out in its very short ‘long title’. It is intended to be ‘An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals’. Anyone in the group intended to be caught by it – mostly the broadcast and press media (see s 1(2)) – can be prosecuted if the Attorney-General agrees (s 1(3)).

 

The fact of there being criminal liability in all this indirectly creates the ability for the court to impose what have become known often as ‘super injunctions’ in family proceedings. Ungoed-Thomas J explained this in the still entirely relevant case of Duchess of Argyll v Duke of Argyll [1967] Ch 302, [1965] 2 WLR 790 considered further below. And if that injunction is breached, this may then give rise to civil committal proceedings (which have nothing to do with s 1(3) or the Attorney-General).

 

Section 1(1) of the Act creates two separate sources of restriction on publicity by media and print. One depends on injury to public morals (s 1(1)(a)) and is likely to be in Dr Cretney’s ‘irrelevance’ category. Section 1(1)(b) says that in divorce, nullity, judicial separation (and the same for civil partnership proceedings), all but some prescribed information – names, addresses etc of the parties; ‘a concise statement of the ‘charges, defences and counter-charges’; submissions on points of law and the judgment – are caught, and under the Act may not be published. Nothing is said in s 1(1)(b) of injury to public morals, which is what the Act’s pre-amble says it is supposed to be all about.

 

For the day-to-day defended divorce – relatively few of these though there may be – s 1(1)(b) makes it unlawful to publish any but the prescribed information. This is so, even though the hearing is in open court. Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417  (which still lays the modern foundation for all proceedings being in public) was a nullity case. Rule 7.16, already mentioned, says that a divorce etc hearing – especially a defended divorce hearing – must be in public. So the press and public are allowed in; but only the details in s 1(1)(b) can be reported by the press.

 

It is striking, from all this, that the gap between the divorce proceedings information train and the platform edge of ‘injury to public morals’ (set out in the pre-amble and s 1(1)(a)) is very wide indeed. In short, it is difficult to see how s 1(1)(b) fits with the pre-amble to the Act; but the details it prevents from publication are plainly set out in the 1926 Act.

 

Duchess of Argyll: super family law injunctions in 2018

 

The case of Duchess of Argyll v Duke of Argyll [1967] Ch 302, [1965] 2 WLR 790 Ungoed-Thomas J remains an essential source of legal principle on the 1926 Act. It concerned a breach of confidentiality injunction (a form of reporting restrictions order or ‘super injunction’). Following an eight year marriage the Duke presented an adultery divorce petition in Scotland. The Scottish judge, Lord Wheatley, commented on the Duchess that her attitude to the sanctity of marriage was ‘what the moderns might call sophisticated but what in plain language can only be described as wholly immoral’. Thus a view from the Scottish bench in 1963, and that in the year in which Lady Chatterley’s Lover was prosecuted – unsuccessfully – as obscene (for a discussion see here).

 

The Duke was granted a divorce. That year articles by the Duchess appeared in a newspaper, concerning the Duke’s drug habit, and that he had borrowed money to do up property from the Duchess’s family. Of these Ungoed-Thomas J said: ‘though not free from objection [the Duchess’s articles leave] on my mind a more sympathetic and favourable impression of the Duke than do his own articles’ and the Duke’s descriptions of her and their private life.

 

The Duchess sought interlocutory injunctions to restrain the Duke from communicating to the defendant editor, and newspaper proprietors details of the Duchess’s private life, personal affairs or private conduct communicated to him in confidence during the subsistence of their marriage and not hitherto made public. She claimed in respect of the Scottish proceedings under s 1(1)(b) of the 1926 Act and she claimed that publication of statements about her were in breach of marital confidence. Of those confidences she said:

 

‘During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs, and many other things which one would never have discussed with anyone else. Apart from explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done. These things were talked about and done on the implicit understanding that they were our secrets and that we allowed the other one to discover them only because of the complete trust and mutual loyalty which obtained between us and created an absolute obligation of confidence.’

 

This created between the couple, said Ungoed-Thomas J, an implication of confidence which the law must respect. He could – and so ordered – protect the confidences by reporting restrictions injunction. What the judge said of marital confidences remains important in the law today (as more recent case law confirms: see eg Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814).

 

Despite defended divorces being in open court – when that would normally mean that all that was said, and all documents read in court or referred to could be published – s 1(1)(b) puts a clear statutory brake on such publication. That means the media can only publish and print with care; and in the terms only of the information set out in Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b).

 

And if a media representative or other non-party to proceedings formally want information about a divorce, they can ask the court afterwards for a copy of any order made in open court (FPR 2010 r 29.12(2)).

Domestic abuse assistance scheme

20170407_161350Domestic abuse: re-abuse in non-molestation order proceedings

 

The proposal set out here, arises from the issue identified by Women’s Aid and, in case law, by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 over ten years ago. The problem was – to an extent – intended to be provided for by a government bill (Prison and Courts Bill) lost with the 2017 election. As Roderic Wood pointed out, and as explained below, criminal proceedings provide protection from re-abuse in the witness box by a respondent/accused in person cross-examining the complainant or other witness (Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’) s 38(4)). Family proceedings do not provide the same, or any, protection.

 

The scheme proposed here can provide a prototype for an effective scheme for the government to run; and which will cover the problems identified by such judges as Lady Hale in the Supreme Court and Hayden and Peter Jackson JJ in the Family Division in for example cases like Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, [2013] 2 AC 66, Re A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), Hayden J and H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam). In all of these cases the witness or party could have been assisted only if the bill’s ‘significant distress condition’ exemption in the bill applies.

 

Cross-examination in person of a complainant in family proceedings

 

YJCEA 1999 s 35 and 36 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. YJCEA 1999 s 37[1] is a catch-all section. It leaves it, finally, to the court to decide whether a direction should be made (s 37(2)) that such cross-examination should not be permitted, with the factors for the court to consider in making its decision in s 37(3).

 

If ss 35-7 apply – that an accused in person should not cross-examine in person a witness – then s 38 come into effect. The court must ‘invite’ the accused to instruct an advocate, failing which – no one can be compelled to have legal representation (European Convention 1950 Art 6.3(c) – ‘the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused’ (s 38(3)). Then s 38(4) applies, and requires the court to appoint an advocate to cross-examine:

 

(4)If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

Advocate not responsible to the respondent

 

Section 38(5) provides that: ‘A person so appointed shall not be responsible to the accused.’ Provision is made under YJCEA 1999 s 40 for payment of ‘the proper fee or costs of a legal representative appointed under s 38(4)… and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment’ from public funds.

 

European Convention 1950 Art 6.3(d) gives a defendant in criminal proceedings the right to examine ‘witnesses against him’; though this need not be face to face (R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157). It is likely that analogous rules in relation to Art 6.3 would apply in domestic abuse proceedings under Family Law Act 1996 Pt 4 in view of the seriousness of some of the applications which are equivalent to, and sometimes of the same facts as, criminal charges.[2]

 

Before the 2017 general election the government proposed a scheme similar to this as part of Prison and Courts Bill. Clause 47 of that bill proposed a variety of amendments to Matrimonial and Family Proceedings Act 1984 to cover the proposal. It was more limited than that needed (see below). It was lost when the election was called and has not so far been revived.

 

A voluntary scheme

 

For the time-being, to assist complainants and the courts, a scheme of free (pro bono) advocates could surely be set up. Financial assistance will be sought for the expenses of such advocates. Thus far, neither Resolution (a group of family lawyers, mostly solicitors) nor Family Law Bar Association will directly help. Both groups say the Government must take action, though FLBA may help with publicising any voluntary scheme to its members but no more.

 

If we wait for the government, especially for a Tory Government, we could wait for ever. Most new schemes to help people are started by volunteers. If we waited for the government there might be only fee-paying schools and few hospitals or libraries. Reforming Labour governments have helped to ease that: the NHS, state education and legal aid, freedom to roam and human rights; even YJCEA 1999 itself.

 

Resolution and FLBA probably think that a scheme proposed by the government (in line with YJ s 38(4) and funded as under s 40) will solve the problem; and that therefore we should wait till the Government get on with it as they promised a year ago. That is all very well. The Government are doing nothing at present; and judges such as Hayden and Peter Jackson JJ are having to make do as they watch witnesses and parties being further abused in cross-examination. In Re A (A Minor: Fact Finding; Unrepresented Party) (above), Hayden J explained the position:

 

[60] 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. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

 

Over ten years ago in H v L and R (above) Roderic Wood J pointed out the extent to which family proceedings lag behind criminal cases in protecting the vulnerable witness from re-abuse. He was lucky enough to secure help from the Attorney-General in that case. That will not happen again. Under this scheme a small number of advocates are being asked to help courts, if judges in the small number of cases which apply, ask for assistance for an unrepresented alleged abuser to cross-examine and alleged victim. This may also have the advantage of providing the Government with a prototype.

 

David Burrows

26 December 2017

 

[1](1)This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—

(a)the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or

(b)the court of its own motion raises the issue whether such a direction should be given.

(2)If it appears to the court—

(a)that the quality of evidence given by the witness on cross-examination—

(i)is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and

(ii)would be likely to be improved if a direction were given under this section, and

(b)that it would not be contrary to the interests of justice to give such a direction,

the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.

[2] In H v L and R (below) Roderic Wood J took the view that in civil proceedings a right to cross-examine existed thanks to Art 6.3(d): ‘[6]… Although, in principle, Art 6(3)(d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by s 34A of the Criminal Justice Act 1988, which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by s 35 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act).’

Top twelve family law cases for 2017

 

Miller to Mental Capacity Act 2005

 

A review of my top twelve family law cases for 2017 must mention – no more – R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583. It drew attention Brussels IIA (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) as being an example of legislation which any ‘Great Reform Bill’ (such a silly name, now European Union (Withdrawal) Bill)) could not replace. It requires co-operation from other EU legislatures and judiciary which may – or may not: we do not know yet – be forthcoming.

 

Lady Black must be congratulated for her promotion to the Supreme Court; but for clarity of law-making her brother McFarlane LJ remains the star. In the High Court it is hard to choose only a handful of cases when we have lawyers of the calibre of Peter Jackson (now LJ), Cobb, Keehan, MacDonald, Hayden and Baker JJ pushing out the judgments (I don’t mention Mostyn J, who is too self-indulgent; and he is too wobbly as a lawyer to be a good judge).

 

It is odd that it is the male judges who send in their judgments to BAILII. The common law (for it is reported, not unreported decisions which frame the law) – like other things in life, perhaps? – tends to be made by boys, even in family law. I have limited each Family Division judge to only one case. No women reach this cut, which may be very unfair: where are Parker or Theis, Russell or Roberts JJ, for example? Not even Lady Hale, whose judgements in her thirteen years in the Supreme Court have done so much to reform and define family law, makes it in Supreme Court judgments this year.

 

Nor have I found it possible to include in my dozen one judgement from the President, Sir James Munby. Perhaps in part this is because amongst his duties is work on obscure subjects like HRH Princess Margaret’s will and cases brought by the Queen’s Proctor such as Grasso v Naik (twenty-one irregular divorces) [2017] EWHC 2789 (Fam). Twenty-one divorce petitions issued from the same address by a struck-off barrister were revoked or set aside. After the initial explanation of the law and a scan of the evidence you could tell that Sir James was thoroughly bored by the whole thing. Neither case – the will and the QP application – add much to the use or ornament of the principles of family law.

 

The appellate courts

 

2017 began with all eleven Supreme Court Justices delivering their split (8:3) judgements in Miller. Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 explained that an undertaking, pre-curial to a court order could be varied in narrow and appropriate circumstances (Birch by the way was ignored by Mostyn J in his administrative exercise of CH v WH (Power to order indemnity) [2017] EWHC 2379 (Fam) as explained here https://dbfamilylaw.wordpress.com/2017/12/18/when-is-a-financial-provision-order-not-an-order/). R (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) [2017] UKSC 51, [2017] 3 WLR 409 makes the cut as a family law case. It is pervasive to all litigation. It elegantly and authoritatively defines rights to justice and the rule of law.

 

The star for me of Court of Appeal cases is Re T (A Child) [2017] EWCA Civ 1889 in which McFarlane LJ explains the breadth and utility to parties and children in family proceedings of the non-molestation order under Family Law Act 1996 s 42; in this case to protect a child who was in foster care. In so doing he refuses to define ‘molestation’ or ‘domestic abuse’ (see, by contrast, the effort to do so in the revised FPR 2010 PD12J para 3: for a pre-Re T discussion of PD12J see https://dbfamilylaw.wordpress.com/2017/11/18/lord-scarman-and-a-definition-of-domestic-abuse/). It depends on the circumstances and whether they come within the broad meaning of molestation in Family Law Act 1996 s 42.

 

In Hart v Hart [2017] EWCA Civ 1306 Moylan LJ produced a master-class on the back-ground to the modern – ie post White v White [2000] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 – law on ancillary relief; and in particular in relation to ‘non-matrimonial assets’ (eg inherited, after acquired or earned by exceptional effort assets). Mrs Hart, much to the unbridled disgust of her own lawyers, Irwin Mitchell (who should have restrained their comments on the judgment) failed in her appeal. A judge has a wide discretion in these things. All lawyers, Irwin M included, must learn that discretion does not always fall the way you expect – or in the way you have advised your client to expect.

 

In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 Sir Ernest Ryder (as President of Appeals Tribunals) emphasised that care is needed by courts in how they treat the evidence of vulnerable witnesses (here in an immigration appeals tribunal). It is an important case for anyone acting for a vulnerable party or witness in any form of court proceedings: criminal, family, civil or administrative tribunal (as here). Two particular issues arose which are relevant also eg to children proceedings: the way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and the importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done) (please note authors of the recent FPR 2010 Pt 3A on vulnerable witnesses: and see David Burrows on ‘Evidence of children and vulnerable witnesses: Part 1’).

 

European cases

 

Maybe I’ve been a little biased in singling out EU regulation cases; but the hole being bored in our family justice system is still only present, for now, in its ignoral by most family lawyers. In B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) MacDonald J explained the background to the stay jurisdiction and why in this case the former wife and the English courts must await a decision from the Milan court. In FE v MR & Ors [2017] EWHC 2298 (Fam) Baker J considered whether Brussels IIA Art 15 enables the court of a member state (a requesting court, R) to request another to transfer a case from that member state’s court to R’s court. Were the children’s circumstances exceptional and would the requesting court ‘be better placed to hear the case’ (Art 15.1). Baker J considers the factors which should influence him in requesting a Spanish court to transfer a case to the English courts, where two children aged 14 and 11 of Spanish parents, were living in England, but had been subject to proceedings in Spain for four years.

 

One money, one ‘private law’ children case; and finally a ‘public law’ case, all under Brussels IIA. In Redbridge LBC v D, E, F and G (Children: Art 15 – transfer of the proceedings) [2017] EWFC B82, HHJ Carol Atkinson as High Court judge dealt with an application under Art 15 in respect of 4 Roma heritage children from Romania. An application for a transfer of the proceedings to Romania, pursuant to Art 15 was issued by the mother in April 2017. The English court had jurisdiction based on habitual residence. Judge Atkinson provides a text-book analysis of the law to determine this application, by reference to leading case law and concluded that it would not be in the ‘best interests’ of the children to transfer the children; at least not at this stage.

 

In the tragic case of Re Gard (A Child) [2017] EWHC 1909 (Fam) (and see ‘Lessons from Gard’), Francis J did what a Family Division judge sometimes has to do, and he did so with great dignity and care. Charlie suffered severe brain damage and could not see or hear or breathe because of a mitochondrial condition. Your heart bleeds for his parents, who – or on whose behalf – every legal and medical stone was turned. Spare a thought too for the Family Division judge who has to say a child must die.

 

In Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J – with enormous care, and attention to detail of the evidence – explained why children should go into care and why the ABE evidence adduced before him was admissible and credible. An oddity of the case remains that information which should have been covered by legal professional privilege – as I read the report (see eg here) – was compelled to be produced by a lawyer who took part in the early stages of the case.

 

Peter Jackson J (as he then was) would be the first to accept that Re A (Letter to a Young Person) (Rev 1) [2017] EWFC 48 broke no new ground, in law. It has to be included here as a very real attempt to open up to a ‘young person’ (a young boy who had, originally, made his own application to go to live with his father in a ‘Scandinavian’ country). When courts are being reminded daily that the views of those children mature enough to be consulted – if they want to be consulted – must be taken into consideration (see Charter of Fundamental Rights of the European Union Art 24: also proposed to go with EU withdrawal), for a judge to ensure that the traffic flows in both directions is surely a very good thing?

 

My favourite case of 2017 is Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam). In it Cobb J combines, with the typical sensitivity of a fine children lawyer, an understanding of how one of my favourite cases of all time – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – with a subject which is essential to all family lawyers Mental Capacity Act 2005. He shows how these two subjects complement one another in relation to a child’s or other person’s understanding and ability to consent (see eg ‘Capacity to consent’).

 

Happy Christmas to any and all of my readers…

 

David Burrows

24 December 2017