Non-molestation and open court hearings

Is it the law that family court injunctions be heard in open court

 

In A child and the open justice principle I asked why the ‘child’ Charlie Pearce must – rightly, surely? – have his name published after his attempted murder trial (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); whilst, for example, the names be kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). I continued: why are parents whose children, at their hands, protected sometimes from serious harm are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who investigated for serious crimes but not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49.

 

Most startlingly, a man (say, ‘R’) can be brought anonymously (ie ‘in private’ or secretly) before the family courts for often dire forms of ‘molestation’ of their partner or children (Family Law Act 1996 (‘FLA 1996’) Pt 4); yet R, if prosecuted, will be dealt with in open court, on the same facts. Are the family courts, it might fairly be asked, trying to keep R’s behaviour secret? Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors? If R breaches any injunction, this will be dealt with in public – though not in family proceedings – as a criminal offence FLA 1996 s 42A.

 

Family proceedings: hearings ‘in private’

 

The rule in family proceedings since April 2011 is said to be that all proceedings covered by Family Procedure Rules 2010 (‘FPR 2010’), save where otherwise ordered or the rules say something else, are to be in ‘private’ (r 27.10(1)). ‘In private’ means that ‘the general public has no right to be present’ (r 27.10(2)).

 

Two important common law principles are in play here:

 

  • That all hearings must be in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; affirmed in eg European Convention 1950 Art 6.1), unless administration of justice or eg the welfare of children (as now summarised in Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(3)) requires confidential (or ‘private’?) hearing. What is meant by ‘private’ was explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565
  • The law cannot be changed by a rule save where statute permits: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said at [27]: That rules cannot ‘change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)[1965] Ch 1210’ (Senior Courts Act 1981 s 51(1) which permits rules to create substantive law on costs is an example of the exception).

 

The passage (italicised below) with which Lady Hale agreed was from Lord Denning MR where he said in Re Grosvenor Hotel, London (No 2) [1965] Ch 1210 at 1243 (of an attempt by rule-makers to change the law on public interest immunity):

 

The truth must be faced that, if this rule is within the powers of the Rule Committee to make, the hands of the judges are tied. They have no option but to act on [what] the Minister or of the permanent head of his department [says]. What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land. The law as to Crown privilege is not mere procedure or practice. It may perhaps be said to be a rule of evidence, but I would rank it higher. It is a principle of our constitutional law which is to be observed in the administration of justice, not only when a witness is called to give oral evidence, but also when a party is called upon to give discovery…. If this rule only states the existing law, there is no harm in it. But if it gives the government departments a veto on the production or inspection of documents — to a greater extent than that which is warranted by law — the rule is, in my opinion, bad.

 

Delegated legislation and Parliamentary will

 

At this point one judicial canard – with respect to, for example, MacDonald and Mostyn JJ – must be laid to rest. Both those judges have given judgments which suggest that Parliament have somehow ‘expressly provided’ for a change in the law from open court to private hearings for all family proceedings (save where for eg divorce hearings they are in open court) by the fact that the Lord Chancellor’s Family Procedure Rules Committee has changed the rules.

 

Such express provision of Parliament is not so. Like the majority of delegated legislation, rules are made under the negative resolution procedure (Courts Act 2003 s 79(6)). Only one set of such legislation has been queried by a member of either House in the last 37 years. Courts Act 2003 ss 75 and 76 make it clear that it is the rules committee which makes the rules, not – even under any constitutional law fiction – that Parliament has done the job.

 

Thus in HRH Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor [2017] EWHC 3095 (Fam), Macdonald J said of the rules on a number of occasions words to the effect of:

 

[87] … In this regard, I note again that Parliament has expressly provided in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation…

 

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J spoke of Parliament specifically maintaining proceedings in private (which seems to be in direct opposition to what Lord Denning MR said over 50 years ago: it is rule-makers not Parliament, who – in reality – make the rules):

 

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

[15] … It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog….

 

Parliament did not even contemplate the ‘implied undertaking’. It is not mentioned in FPR 2010 at all. It is mentioned in rule form in CPR 1998 r 31.22 (intended to reverse the former rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). Formally that rule does not apply in family proceedings. What precisely the ‘implied undertaking’, and whether Harman still applies, in family proceedings is muddled. Probably it is best described, for family proceedings, as in line with CPR 1998 r 31.22 (see discussion in Family Court Practice 2017 under FPR 2010 Pt 21).

 

Rule in Clibbery v Allan

 

Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565 concerned whether Ms Clibbery could pass documents which she received from the respondent in proceedings under FLA 1996 Pt (an unsuccessful occupation order application), so far as they were not covered by the ‘implied undertaking’ not to release documents required to be produced under compulsion of (then) ‘discovery’. In a frequently cited case and agreeing in the outcome with Munby J below (Clibbery v Allan [2001] 2 FLR 819) the Court of Appeal (Dame Elizabeth Butler-Sloss P with whom Thorpe LJ agreed) held that though the hearing was in ‘private’ documents could be released by Ms Clibbery to the press. Anonymity seems not to have been in issue.

 

Dame Elizabeth explained the term ‘private’ – as distinct from open court and ‘secret’ or ‘confidential’ – as follows:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

This tri-partite division remains the common law position in family proceedings; and on the Grosvenor Hotel principle it cannot be changed by delegated legislation. It is not altered by such cases as Appleton v Gallagher and Luxembourg v Luxembourg since these do not apply in the case of Family Law Act 1996 Pt 4.

 

Family Law Act 1996 Part 4, anonymity and ‘private court’ hearings

 

Subject to the ‘implied undertaking’ (or CPR 1998 r 31.22) point, the law would seem to be as in Clibbery v Allan. That as the Court of Appeal had explained in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, ‘privacy’ means that, space permitting, the public are allowed into a court held in private (after all the words of r 27.10(2) do not prevent asking for permission: that is how it works with any situation where a person has no right, but can ask to come in, all the same).

 

Thus a frightened ex-partner or spouse can invite friends or family to come to court with her. They do not need special permission and the court can be asked to make room for them. Whether the press and others – eg to see how any successor to Prison and Courts Bill cl 47 works in practice – can come into court: that awaits another day, another discussion of this absurdly complex area of law. There seems to be no logic in the same facts being dealt with in ‘private’ (if not in secret) in a family court, but in open court in criminal proceedings; but logic does not rule family law when the open justice principle may apply.

 

And anonymity: surely that cannot truly be in question? The names of mother and Mr JM – especially in the Court of Appeal – should surely be public. To that extent, at least, family courts need not afford secrecy to those who molest or otherwise abuse their partners, children or other members of their family – unless publicity of their names might be jig-saw linked back to any children concerned.

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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.