FAMILY JUDGES LEAVE THE LEGAL AID FIGHT TO THE ADMIN COURT

The real judicial fight for legal aid funding

The Family Division seems to have given up on the real fight for legal aid (with the noble exception of HHJ Bellamy sitting as a High Court J; but he was turned down on appeal (Re K & H (Children) [2015] EWCA Civ 543). Much sound and some fury comes from for instance Sir James Munby P and Mostyn J and expressions of regret from Holman J. The real work is being done in the Queen’s Bench Division, Administrative Court (and its Divisional Court) by the likes of Beatson LJ, Collins, Green and Ousley JJ and in the Court of Appeal (see https://dbfamilylaw.wordpress.com/2015/07/17/mr-justice-collins-and-is-v-laa-good-news-for-family-lawyers/ for the count-down of recent cases).

Time was when Munby J (as Sir James then was) would have rolled up his sleeves and weighed in alongside the admin law judges (see PGS below); but no longer. His latest rumbling – signifying, if not ‘nothing’, then little of concrete effect – is Re M (A Child) [2015] EWFC 71 (4 August 2015). He starts his judgment with the relatively dramatic words: ‘[1] Once again I am faced with the plight of a vulnerable mother unable to pay the cost of family proceedings’; and he concludes it by the following declaration:

[16] … (c) the ongoing proceedings [in which the mother was involved] are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.

Re M: the background – a ‘vulnerable adult’ mother

The facts of the case were that M is a 3½ year old child. A supervision order and special guardianship order were made on 15 November 2013 in favour of a relative of the mother. She applied to discharge these orders; but said Sir James, in reality she was seeking a re-hearing of the ‘finding of fact hearing’ which resulted in the order because of ‘a breach of [European Convention 1950] Art 6’ (§[4]). (Sir James does not embroil himself in any review of the ‘procedural quagmire’ which the Family Procedure Rules Committee have permitted themselves to enter (see eg http://www.familylaw.co.uk/news_and_comment/set-aside-and-appeals-a-procedural-quagmire#.VcIkj_mqqko): as to whether the Family Court even has power to re-hear cases; or should it be an appeal etc; but that is for another day…).

Sir James explained that the fact-finding hearing was conducted without the full extent of the mother’s ‘disability rendering her a vulnerable adult’ being known to the court. Yes, really; though it is hard to understand how that could have happened. He goes on:

[5] The application came before Judge Bond [the circuit judge] on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9.[1] He expressed his conclusion in this way:

‘Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

‘I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

‘I therefore give the mother leave to re-open the fact find (sic).’

European Convention 1950, IS and exceptional case funding

In IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) (considered at eg http://www.familylaw.co.uk/news_and_comment/exceptional-case-funding-lord-chancellor-must-still-do-better#.VcJMmPmqqko), Collins J found that the Lord Chancellor’s guidance to his Legal Aid Agency case-workers was still deficient, and said of Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3) (exceptional case funding (ECF) for legal aid in cases where European Convention 1950 principles may be in issue) and family proceedings:

[40] It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such [ie relatively simple] cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

If IS was referred to Sir James, he does not mention it; and yet the italicised passage would seem to be M’s motehr to a tee (save that hers was not a simple case), especially if the circuit judges comments on the Art 6 position is factored in.

Judicial review: join the public body

In PGS (also known as Giltinane) v Child Support Agency [2006] EWHC 423 (Fam), [2006] 2 FLR 857, Munby J was confronted not by the legal aid authorities as the applicable public body, but by the Child Support Agency. There he had no qualms about donning his Administrative Court wig and proceeding in judicial review (referring to an earlier Lincoln case, in which he had done the same):

[13] The issue in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin) arose at a later stage in the enforcement process, but the essential vice in that case was the same as in this. Justices were given an erroneous figure by the CSA. I need not repeat everything I said in R (Marsh) v Lincoln District Magistrates Court, Secretary of State for Work and Pensions (Interested Party) [2003] EWHC 956 (Admin). But in this case as in that, and for essentially the same reasons, I am satisfied that the decision of the justices cannot stand. If there is no other way to give the appellant the justice to which in my judgment he is entitled, the Administrative Court must give him a remedy by way of judicial review. And in this case as in that the mere fact that the appellant is out of time for making an application for judicial review cannot stand in the way.

[14] Although I have no power to extend the appellant’s time for appealing by way of case stated I do have jurisdiction to extend his time for applying for judicial review. Applications for permission to apply for judicial review out of time must be scrutinised with care, and good reason must be shown for extending time. But none of that can stand in the appellant’s way in this case. The fact is that the justices were, as is now conceded, given the wrong figure by the CSA. There was accordingly a miscarriage of justice. Once that fact comes to light the Administrative Court is duty bound to intervene, whatever the delay. In the present case, of course, it seems that the appellant had in fact tried to challenge the decision in time, but even if he had not I would have come to the same conclusion. As it happens I am a nominated judge of the Administrative Court and can make the necessary order without sending the appellant away to another court on another day.’

Legal Aid Agency and judicial review

I accept that the LAA was not a party to Re M; but surely someone could have undertaken to issue a judicial review application, the proceedings could have been dealt with alongside one another, and the LAA could have been urgently directed by a ticketed Family Division judge, to say why – one way or another (ie as ‘special Children Act 1989 proceedings’ or as ECF funding under LASPOA s 10(3) – the mother had not been granted a certificate.

Sir James’s declaration in §[16] might do the trick; but a judicial review pre-action protocol letter immediately after Judge Bond’s February 2015 comments (set out above), with judicial review too follow, might surely have ensured this mother and her advisers legal aid funding much sooner? In the light of the Court of Appeal comments in December 2014 R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 this case did not – as far as I can see – need to await the later IS decision from Collins J, but that surely must have helped.

[1]  More correctly, perhaps, a decision of Charles J, described by BAILLI as Birmingham City Council v H and others [2005] EWHC 2885 (Fam) a decision of Charles I (sic) in which, as Sir James Munby P said in ZZ (at §[12]) as: ‘In my view the approach [of the family court to earlier findings] has three stages. Firstly the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding (here referred to by the parents as a review). If it does the second and third stages relates to its approach to that exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.

Mr JUSTICE COLLINS AND IS v LAA – GOOD NEWS FOR FAMILY LAWYERS

An important way forward for clients in family law proceedings

The decision of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) – on 15 July 2015 – should be good news for family lawyers (see especially §[40], set out in full below); and by my calculation it takes the score as between legal aid applicants and the Lord Chancellor (Legal Aid Agency) in the Senior Courts to 5-2.

IS v LAA (above) represents a review by Collins J of the exceptional case funding (ECF) provisions of LASPOA 2012 s 10 in the light of:

  • R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (‘Gudanaviciene 2’) where the Court of Appeal shared the adverse view of Collins J of the Lord Chancellor’s Guidance on ECF and largely allowed the appeals against his Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin), Collins J;
  • Exceptional Funding Guidance (Non-Inquests) (‘the Guidance’) revised in the light of Gudanaviciene (but see below; and see http://www.familylaw.co.uk/news_and_comment/lord-chancellor-s-guidance-on-exceptional-case-funding#.Vae_fPmqqko); and
  • Experience, as presented to him by the parties, of operation of the ECF scheme one year on from his own earlier Gudanaviciene decision of 14 June 2014.

IS had been one of the respondents in Gudanaviciene 2, but his appeal was abandoned since it was not necessary for him personally to pursue it. The Official Solicitor (with the Public Law Project instructing leading counsel for IS and the OS as his litigation friend) wanted to clarify the position as to the funding of litigation by vulnerable individuals (or who otherwise lacked capacity, eg as children or adults). There were worries that such parties to proceedings might not secure ECF funding. The case therefore came before Collins J as a test case (see §[5]).

Framework of the judgement

In a truly measured and carefully structured judgment Collins J set out his views on why the legal aid scheme still presented to him as unsatisfactory:

  • The law – such is the complexity – even to most lawyers – of the legal aid statutory provisions that almost one third of a long judgement is taken up by a summary of the applicable law ([7] to §[26]).
  • Operation of the scheme [40]-[65] – Collins J, from his independent stand-point, sees the scheme as ‘wholly deficient’ ([40]). ‘The scheme is not working as it should’ (§[42]). The judge considered that the approach of LAA decision-makers was ‘unhelpful’ (§[62]).
  • Protected individuals §[73]-[80] – the position of ‘vulnerable’ individuals in family proceedings has been under review by Family Division judges for over a year. A wider and more accurate term (ie to recognise parties, witnesses and the forms vulnerability can take) might be ‘protected individuals’. Collins J considers their and the OS role in relation to them and legal aid in detail.
  • Merits test and its European Court jurisprudence is dealt with at §[81]-[97], with a series of criticisms by Collins J of its operation by LAA:

[96] There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist….

Collins J takes the view that even the statutory merits (‘prospects of success’) test and the LAA approach to it, is wrong:

[97] …the circumstances of each case will be determinative and there can in my view be no doubt that the way in which merits [of civil legal services applications] have been approached has been flawed.’

Conclusion: ‘there must be changes’

The first and main ground of the judicial review application is summarised by Collins J thus:

[27] … [The] first ground is that the scheme as operated by the first defendant is intrinsically unfair because it does not enable those who need assistance in either making or resisting claims or ascertaining with proper expert advice from a lawyer whether they have a valid claim or defence which needs representation to obtain the necessary assistance. The result has been and continues to be that some of the most vulnerable are deprived of a fair hearing in that they are unable to present their cases effectively. Mr Hermer [counsel for IS] described this ground as an “evidence based impeachment of the operation of the ECF scheme”.

Collins J answers this ground (and a second relating to LAA dealing with urgent applications) as follows:

  • ‘There must be changes to the scheme’ ([105]):
  • Application forms are ‘far too complex’
  • The ‘obvious unfairness’ test in Gudanaviciene 2 must be set out in the application form
  • Provision of legal help for providers who assist must be considered by the Lord Chancellor
  • Operation by the LAA of the merits test is dismissed by Collins J in one short paragraph:

[106] The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.

  • The ECF scheme is not providing the safety net provided by ministers ([107]).
  • The ECF scheme is not in accordance with LASPOA 2012 s 10, in that ‘it does not ensure that applicants’ human rights are not breached or are not likely to be breached’.

IS and the family lawyer: a scheme which is ‘wholly deficient’

Though IS and Gudanaviciene (Ms Gudanaviciene’s case itself) were immigration cases, it is clear from what Collins J says that he considers the depredations of the LASPOA 2012 civil legal aid scheme and the ECF under s 10 to have fallen most heavily on litigants in the family courts. His assessment of operation of the scheme for ECF, especially in family cases, is:

[40] It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.

The Lord Chancellor Guidance – even in its revised form – must look wider than European Convention 1950 Art 6, says Collins J. For example many family cases, especially where children are involved, engage Art 8. It is as important that a litigant has a fair trial, as – especially in family, but also in some immigration cases – that Art 8 is considered (as Gudanaviciene 2 itself stresses). No article is of more importance than another (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn).

And again the pejorative epithets are applied by Collins J. For example, as applied to the family courts, the scheme is ‘wholly deficient’. If it works as Collins J considers LASPOA 2012 s 10 should be operated by LAA, then ECF funding should be available for many more family courts cases.

Legal Aid Applicants v Lord Chancellor

And the score? Since March (when https://dbfamilylaw.wordpress.com/2015/03/20/legal-aid-applicants-4-lord-chancellor-1/ was written) the LA Apps have lost in the Court of Appeal against the Lord Chancellor in Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015) but won in the High Court on IS. My tally is as follows:

Legal Aid Applicants (LA Aps)

  • JG v Lord Chancellor and ors [2014] EWCA Civ 656
  • R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622
  • R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), Green J
  • R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin); and
  • IS

Lord Chancellor (LAA)

  • R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin);
  • Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015)

It is not a good record for the upholder of our rule of law, to find that his judges so regularly consider that he and his department have acted unlawfully; but that is for another day. Family lawyers can now help their clients to take advantage of what Collins J and IS seems to offer them.

It is not a good record for the upholder of our rule of law, to find that his judges so regularly consider that he and his department have acted unlawfully; but that is for another day. Family lawyers can now help their clients to take advantage of what Collins J and IS seems to offer them.

‘EXTENSIONS’ TO LEGAL AID SCHEME FOR DOMESTIC ABUSE

A worsening of the applicant’s position?

Modest amendments to the legal aid scheme come into force on 17 July 2015 under Civil and Criminal Legal Aid (Amendment) Regulations 2015 (SI 2015/1416: ‘CCLA(A)R 2015’; http://www.legislation.gov.uk/uksi/2015/1416/pdfs/uksi_20151416_en.pdf. Already these amendments have been given a muted welcome by, for example, the Law Society and Resolution. The welcome should perhaps be more limited still: one amendment seems to worsen the position of the applicant and the second to provide but a grudging change.

If I were a family court judge I would be very cross that civil servants in Legal Aid Agency (‘LAA’) could, in effect, tell me what was domestic abuse and when I could protect a party to proceedings under Family Law Act 1996 Part 4 or Protection from Harassment Act 1997 from such abuse. The effect of Civil Legal Aid (Procedure) Regulations 2012 (‘CLA(P)R’) reg 33 is that it is unlikely – because of the proscribed way in which legal aid is available to those whose means justify it – that the starting point for exercise of judicial discretion is restricted by the 2013 legal aid scheme (under Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) Sch 1 para 12). (It is worth noting that reg 33 also ignores – in a more or less unprincipled way – basic common law rules about issue estoppel; but that is perhaps for another day.)

‘Extensions’ to civil legal services scheme

It is said that amendments have now been made to CLA(P)R 2012. The explanatory note to the amendment regulations states:

Regulation 2 amends the Civil Legal Aid (Procedure) Regulations 2012 (S.I. 2012/3098) [to] extend and clarify the evidential requirements in relation to applications regarding… victims of domestic violence and child abuse.

On examination of the very modest amendments, it seems to me that one of the two amendments restricts – rather than ‘extends’ – the availability of domestic abuse legal aid. The headline ‘Government loosens restrictions imposed on domestic abuse victims following Law Society lobbying’ attributed to the Law Society on 8 July 2015 therefore seems incorrect. And the suggestion (see eg the Resolution press release) that the amendments provide that ‘victims can be assured of support throughout their case’ is not supported by the evidence of the new regulations. That ‘support’ – such as it was – was always there surely? All grants of legal aid are based on evidence (as is the case under the amendment regulations) ‘preceding the date of the application for civil legal services’ (see eg regs 33(2)(b), (d), (eb) etc).

Correctly Resolution warns that ‘further work needs to be done to protect sufferers of domestic abuse.’ From the very modest amendments two immediate questions arise:

  • What do the amendments actually say; and what do they mean (their significance is minimal)?
  • What do they mean to the ordinary reader who needs to understand whether s/he is eligible for legal representation?

The amendments and their effects

CLA(P)R 2012 reg 33(2) provides the ‘the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms’ (and has already been the subject of an unsuccessful application in the Divisional Court: R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)).

The Ministry of Justice press release on the changes (https://www.gov.uk/government/news/civil-news-change-to-domestic-and-child-abuse-evidence-requirements ) tells the reader that the result of the amendments is that from ‘17 July 2015 some evidence need not be re-examined before a final hearing if a certificate has already been granted earlier in the legal process’. This is achieved as follows:

  • relevant convictions for domestic violence or child abuse offences will remain valid evidence for 24 months or until spent – whichever period is longer
  • clarify the language about what is meant when describing evidence of a stay in a domestic violence refuge

(1)        Limitations on unspent convictions

So yes, CLA(P)R 2012 reg 33(2)(a) said that amongst ‘the evidence of domestic violence or risk of domestic violence’ which an applicant must provide is ‘a relevant unspent conviction for a domestic violence offence’. This requirement has been amended by addition of reg 33(2)(eb) as follows:

(eb) a relevant conviction for a domestic violence offence where B was convicted of that offence within the twenty four month period immediately preceding the date of the application for civil legal services;

It is unclear why this has been added six clauses after the provision to which it applies (if it does). More seriously, if anything the provision narrows the availability of legal aid, surely? Previously the conviction appears to have been for an unlimited period, whilst ‘unspent’; whereas now the conviction must be in the twenty-four month period prior to grant of representation.

(2)        No minimum period in a refuge

The twenty-four hour minimum period in a refuge is replaced by a new CLA(P)R 2012 reg 33(2)(i) and 33(3) definition: that accommodation in a refuge is no longer subject to a minimum period. That is the advance which these amendments represent.

Clarity of legal aid law

Lord Bingham’s first ‘sub-rule’ of the rule of law (set out in his 2006 lecture (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) and elaborated in his 2010 book Rule of Law) was:

First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

The assumption that legal advice will usually be available may be accounted optimistic in 2015. The need for clarity is even more pressing as a result. Given that the statutory provisions for legal aid in this area by definition are designed – or should be – for vulnerable and needy individuals already confronting a difficult and abusive life, surely the law-maker has a duty, in a democracy governed by the rule of law, to provide clarity in Binghamian terms.

LASPOA 2012 is a shamefully dense piece of legislation. Subsidiary legislation (eg here CLA(P)R 2012) only intensifies that density and thus the sham. And now we have amendment regulations which may not even be understood by the civil servants and lawyers who promulgate them.

It is not easy to find where in CCLA(A)R 2015 reg 2 the changes alleged by the explanatory note occur in the amendment regulations. When you find them (reg 2(6)), you must then go back to CLA(P)R 2012 (not amended on the government web site: http://www.legislation.gov.uk/uksi/2012/3098/regulation/33/made) and then to 2014 amendment regs (http://www.legislation.gov.uk/uksi/2014/814/regulation/2/made) to get the full picture. That is not easy, even for a lawyer whose job it is to understand these things. For an abused mother or partner surely it must be an impossible task?

If our law-makers themselves do not understand their own amendments to a complex private-public law scheme, how can those who hope to benefit from it? These regulations under a densely provisioned Act are surely – in themselves – of dubious legality? They have already been found to be misrepresented by Ministry of Justice and the Lord Chancellor: see R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (and see https://dbfamilylaw.wordpress.com/2015/06/10/lord-chancellors-guidance-on-exceptional-case-funding/ on the Lord Chancellor’s new Guidance).

Does lack of clarity for the intended beneficiary mean that s/he cannot properly obtain a fair trial (European Convention 1950 Art 6(1); and see https://dbfamilylaw.wordpress.com/2015/06/11/convention-compliance-of-legal-aid-exceptional-case-determination/)? Is the legal aid scheme itself illegal (Human Rights Act 1998 s 6(1))? (I only mention it: on this day 226 years ago Parisians started to pull down the Bastille. Could English lawyers ever succeed in asserting the lack of clarity and thus illegality of LASPOA 2012, and thus start to pull down its legal aid scheme?)

LORD CHANCELLOR’S GUIDANCE ON EXCEPTIONAL CASE FUNDING

Guidance after Gudanaviciene

On 9 June 2015 the Lord Chancellor published Exceptional Funding Guidance (Non-Inquests)[1] (the Guidance) redrafted in the light of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The Court of Appeal found that aspects of the former guidance (undated) were ‘not compatible with article 6(1) of the Convention’. The Guidance, said the court, ‘impermissibly sends a clear signal to caseworkers and the Director that the refusal of legal aid will amount to a breach only in rare and extreme cases’ ([181]), especially in the then paras 9, 10, 12 and 18. The threshold for compliance by a Legal Aid Agency (‘LAA’) caseworker with s 10(3) was set too high (for further discussions see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial#.VXg2kM-qqko).

This article will review the new Guidance, and – in a second part – will ask whether its approach to grant of funding is compliant with Human Rights Act 1998 (HRA 1998) s 6(1) (public bodies must not act in ways which are incompatible with Convention rights).

Exceptional case determination: LASPOA s 10(3)

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10(3) provides for an ‘exceptional case determination’ (ECD) for exceptional case funding (ECF) as follows:

(a) that it is necessary to make [civil legal aid] available to the individual under this Part because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

Thus s 10(3) explains when an ECD should be made. It is ‘exceptional’, not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As the Court of Appeal bluntly assert: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. And of s 10(3)(a) the court went on:

[31] … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….

[32] In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it….

If the ‘Director’ – that is, the LAA case worker or decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

[32] …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….

‘Obvious unfairness’

The court’s conclusion on whether the Guidance properly guided case workers when it came to compatibility with Art 6(1) was to look at Strasbourg jurisprudence and to ask whether lack of representation created ‘obvious unfairness’ ([42]). In a passage which should surely have found its way into the Guidance the court summarised the ‘obvious unfairness’ case-law (at [46]) as follows:

  • The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey v Ireland (1979) 2 EHHR 533 at [24]; Steel and Morris (2005) 41 EHRR 22 at [59]);
  • The question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey (above) at [24]; McVicar v UK (2002) 35 EHRR 22 at [48]; and Steel and Morris (above) at [59]);
  • It is relevant whether the proceedings taken as a whole were fair (McVicar (above) at [50], P,C and S v UK (2002) at [91]);
  • The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair (P,C and S (above) at [91]); and
  • Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris (2005) at [62]).

Case presentation by a party: ‘effectively and without obvious unfairness’

In the final analysis the ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para [56]). Crucial factors include that the greater the procedural complexity or ‘substantive legal issues’:

…the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test).

Art 6(1) does not require civil legal aid in most, or even many, cases said the judges. It all depends on the circumstances. Although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The balance is perhaps expressed by the court as:

[56] … It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand [it is not the law] that legal services are required only in such extreme cases.

The Guidance and Gudanaviciene

The Guidance has been only peripherally rewritten since Gudanaviciene (mostly by adding a sentence here or there to reflect specific points made in Gudanaviciene). For example, a sentence which referred to the threshold for grant to avoid breach of Art 6(1) as being ‘very high’ (old para 10) has merely been removed in what becomes a new para 11. In the old guidance para 12 (criticised, as was para 10, in Gudanaviciene (see above)) stated that Art 6(1) guaranteed the right to a fair hearing, but that grant of ECF should only be made ‘in certain very limited circumstances’. The same passage in the new Guidance reads (now para 13):

Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person’s civil rights and obligations. In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in “most or even many cases” [Gudanaviciene at [56] (set out above)], but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed. Whether the Convention requires funding in any given case depends on a holistic assessment in each case.

(It is not clear that the Court of Appeal said what is in the italicised passage, but perhaps that point can pass for the time being.) The succeeding passages go on, as did the old guidance, to stress the importance of limiting grant by reference to whether a ‘civil right’ is in issue as Art 6(1) (paras 14-18): a slightly sterile discussion in the context of most civil proceedings, since application to a court (legal aid for tribunal proceedings will be very rare) generally brings a civil right into contention.

Breach of an Article 6 right

The Guidance centres its discussion, as before, on avoidance of possible breaches of Art 6; though it must not be forgotten that the Gudanaviciene case itself and Re JG (above) involved also Art 8 (right to respect for family life). The impugned para 18 is represented by a new rubric boxed into the text of the Guidance (between paras 19 and 20, and replacing the former rubric) as follows:

The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness.

In Gudanaviciene the position on grant of ECF to avoid obvious unfairness is intended to be reflected in the new para 20 which states (the former para 19 is italicised below):

The following factors should be taken into account. No one of these factors is necessarily determinative and each case needs to be assessed on its particular facts and in the light of representations made by applicants. However, the factors must be carefully weighed – for example, the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Article 6(1) will require the provision of legal services [Gudanaviciene [56] is cited here].

What the Court of Appeal actually said is as follows:

[56] It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance [now paras 20 to 26]. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases.

The reference to ‘all the circumstances’ and other references in Gudanaviciene to European Court jurisprudence (see eg [46] summarised above) is omitted here and in other parts of the Guidance.

‘Rights… that are practical and effective’

Of the Gudanaviciene principle – grant of legal aid to enable a trial to be achieved ‘without obvious unfairness’ – Black LJ said in Re JG (above):

[97] [ECtHR jurisprudence] in relation to legal aid has quite recently been summarised in Muscat v Malta (2012) Application no. 24197/10. There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings. However the Court recalled that the Convention was “intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”, that the institution of proceedings did not, of itself, satisfy all the requirements of Article 6(1), and that the right of access to court included also the right to obtain a “determination” of the dispute by a court (§45).

She went on to quote from Muscat:

[46] … In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (italics added).

As can be seen from the italicised passage above the duty on the state is a positive one; not, for example, a test which depends on whether an applicant is unable to present a case (perhaps Gudanaviciene was a little harsh on prospective applicants in this sense).

In reality the amendments and additions to the text of the 9 June 2015 Guidance are few (65 paras replace the former 63). It still reflects the essentially restrictive approach to grant under s 10(3) which was applied before (see eg the 19/20 rubric above and paras 6, 21, 23, 24 and 36). Is it ‘necessary’ to grant funding (see paras 6 and 11). This may be what politics demands; but is it what HRA 1998 requires? Is the approach of the new Guidance consistent with the duties of the Lord Chancellor under HRA 1998 s 6(1) and as perceived by the recent Court of Appeal decisions in Re JG and Gudanaviciene? These questions must be considered in the next article.

[1] The full title necessary, to distinguish the two forms of civil legal aid: for inquests and for other civil proceedings

A PRIVATE FUNDING ALLOWANCE IN CHILDREN PROCEEDINGS

Other parent to provide private funding

In MG & JG v JF [2015] EWHC 564 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2015/564.html after a judicial catalogue of complaints about lack of legal aid, Mostyn J made an order in proceedings under Children Act 1989 s 8 that a father should pay a funding allowance to the mother (and her former civil partner: called by him the child’s ‘mothers’) of a child. It is unlikely he had jurisdiction to make this order; and he does not seem fairly to have considered to what legal aid funding the ‘mothers’ might have been entitled.

To compound it all, it is not clear that Mostyn J properly considers the critical difference between the powers of the court to award costs (Senior Courts Act 1981 s 51(1)); and the limited powers of a judge to order one party to pay another’s funding for a case. At para [21] of the judgment he describes the difference between funding and costs as ‘a specious distinction without a difference, but [he went on] that is where we find ourselves, now that the fourth pillar of the welfare state has been largely demolished’ (the fourth pillar he referred to was legal aid; but that was eminently only for funding cases, and nothing to do with costs following the event of litigation).

Funding by another party: by statute only

Provision for funding of family proceedings hitherto has hitherto been by statute or derived from statutory provision, starting with Holman J’s A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FLR 377, which was approved by the Court of Appeal in Moses-Tiaga v Tiaga [2005] EWCA Civ 1013; [2006] 1 FLR 1074 with the critical rider (per Thorpe LJ at para [25]) that the provision of funding (Thorpe LJ’s term, be it noted: see italicised passage below) is linked to the statutory provision in Matrimonial Causes Act 1973 s 22:

[If] the applicant has no assets, can give no security for borrowings, cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth … then there is no source of funding of the litigation other than the approach to the court for a maintenance pending suit that will include a substantial element to fund the cost of the litigation. Obviously, in all these cases the dominant safeguard against injustice is the discretion of the trial judge and it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction. But, I am in no doubt that in such exceptional cases, s. 22 of the Matrimonial Causes Act 1973 can in modern times be construed to extend that far.

Wilson LJ confirmed the jurisdiction in MCA 1973 in Currey v Currey (No 2) [2006] EWCA Civ 1338 when he said

[20] In my view the initial, overarching enquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore, not to forget the third of Thorpe L.J.’s three features, she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. I would add, fourthly, that the court needs also to be satisfied that there is no such public funding available to the applicant as would furnish her with legal advice and representation at a level of expertise apt to the proceedings, i.e. that the applicant does indeed in that regard fall within the unserved constituency referred to by Thorpe L.J. in the statement quoted at [1] above.

It will be seen that Wilson LJ added to the Moses-Tiaga list the requirement – see the italicised passage – to apply for legal aid. The Currey para [20] list has been treated as the basis for the statutory provision – Matrimonial Causes Act 1973 s 22ZA – which has replaced the court’s ability to provide for funding allowances under s 22. (Notably in Mostyn J cites only para [21] of Currey, so – it may be thought – crucially omits the requirement that a party show they cannot get legal aid: see his para [8] and [22].)

Facts of the case and application

The facts of MG & JG v JF [2015] EWHC 564 (Fam) were that MG and JG (45) formed a same-sex relationship and commenced cohabitation in a home they bought in the north of England. They in fact entered into a civil partnership on 14 July 2006; though in the course of the court proceedings they separated, and their civil partnership was dissolved. They had decided in 2005 that they wanted a child. JF was to be the father and it was agreed that JF would be named on the birth certificate and that JG would be a ‘legal step-parent’ with the idea that all three would have equal legal rights. On 24 April 2007 JFG was born by caesarean section. A legal agreement as to JG’s status was made on 23 May 2007, the day JFG’s birth was registered.

From 2007 to October 2012 JF enjoyed periodic contact with JFG monthly or bi-monthly. The contact was typically based at the home of the mothers, or at JF’s home, although JF was able to take his son out. From October 2012 serious difficulties arose over contact such that all parties agreed that the relationship between the mothers and the father broke down; though there is disagreement as to why. A psychologist recommended a detailed programme of supervised, facilitated contact to seek to restore the relationship between father and son, and many other therapeutic recommendations were also made. At the PHR all parties accepted these recommendations in principle. The final hearing was listed for hearing on 24 February 2015.

Mostyn J explained the means of the ‘mothers’ and why, but for the LASPOA 2012 changes, they would have been eligible for legal aid on the basis of their means. They were not eligible any longer, he said:

[4] On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force. It removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. In such a case the alleged victim, but not the alleged perpetrator, might receive legal aid. Otherwise, at a stroke, 63 years of state funding of cases such as this was swept away. Had that “reform” not taken place both MG and JG would have been entitled to legal aid, although in JG’s case subject to a contribution, estimated to be £1,004. With the state washing its hands of MG and JG they now look to JF to fund their representation.

Mostyn J therefore disposed of their funding applications in the following terms;

[34] In my judgment JF (the father) should pay 80% of each of the claims of MG and JG. Therefore he will pay MG £12,202 and JG £8,394. In addition he will pay 80% of all future professional costs in respect of therapeutic work and MG and JG will each pay 10% of such costs.

[35] Thus MG will have to find £3,050 and JG £2,098 and they will each have to find 10% of the future costs of therapeutic work. In my judgment they cannot reasonably or realistically be expected to find more. By contrast, I am satisfied that JF can find, without undue hardship, the share with which I have shouldered him.

[36] It could be said that it is grossly unfair that JF should have to pay now £20,596 plus 80% of the future therapeutic costs up to the IRH. But that is where the government has left him. It is a sorry state of affairs.

The child, JFG, was a party, it will be recalled, and had legal aid. Al aspect of expert evidence was therefore to be paid by him:

[37] This leaves the costs of expert evidence which will come into being between now and the IRH. The consent order provides for the educational psychologist to answer further questions and for the psychologist to file an addendum report. In my judgment these should be paid for by JFG and in my opinion such fees are a reasonable charge on his legal aid certificate, for the following reasons.

Jurisdiction to award funding

Hitherto funding is only available by statutory means: for example public funding (mostly via the dwindled legal aid budget) or through some other statutory means. MCA 1973 s 22ZA has specifically provided for legal services orders. Funding is possible under Children Act 1989 Sch 1 where a financial claim for a child can be pursued (in Dickson v Rennie [2014] EWHC 4306 (Fam) Holman J enabled a mother to be paid under CA 1989 Sch 1 to pursue a child support tribunal appeal).

Mostyn J states no statutory basis for his order. It is most doubtful that the courts have an inherent jurisdiction to award funding provision (otherwise every party in civil litigation would try to obtain funding from their opponent). Without a statute or a finding that he has an inherent jurisdiction it is difficult to see how a funding order can be made in this case.

However there is a prior point. Mostyn J specifically found that the mothers would have been financially eligible for legal aid. He went on to find that the mothers could not be expected:

[8] …to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Articles 6 and 8 of the European Convention on Human Rights and Article 47 of the European Charter of Fundamental Rights.

He was aware of the LASPOA 2012 s 10(3) ‘safety net’:

[13] … A safety net was included by section 10(3)(b) which gave the Director of the Legal Aid Agency the discretion to award legal aid where “it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be …a breach [of Convention or EU rights].” … Lord Chancellor issued guidance concerning section 10(3)(b) which stated that it should be confined to “rare” cases which are of the “highest priority”. But this guidance has been quashed as legally defective by Collins J in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin). That decision is under appeal.

Gudanaviciene and exceptional case determination

Mostyn J was not aware that the Gudanaviciene had been successfully appealled against. The exceptional case determination (ECD) guidance he refers to remains quashed (R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial# ).

In Gudanaviciene the Court of Appeal said of s 10(3) that it explains when an ECD should be made. An application becomes ‘exceptional’ not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As Gudanaviciene says bluntly: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. Of s 10(3)(a) the court went on:

[31] … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….

[32] In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it….
If the ‘Director’ – the LAA decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

[32] …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….

These would not normally be matters for Mostyn J to consider; but given his proposed decision as to funding, they were issues in the Currey list (see quote from Currey para [20] above) for the court to consider before an order could be made (always assuming that the court had a jurisdiction, which I doubt). Having found as Mostyn J did as to their difficulties of representation, surely he must go on to make an assessment of their chances under LASOA 2012 s 10(3) and the correct version of Gudanaviciene?

A ‘HOSTILE’ MR JUSTICE MOSTYN, MR DOWNE AND LITIGANTS IN PERSON

Court: not an ‘advice bureau for the benefit of litigants in person’

The irritation of Mr Justice Mostyn (Mostyn J) in general, with litigants in person, and with a Mr Downe in particular, reverberates from his judgement in Bakir v Downe [2014] EWHC 3318 (Fam). It was ordered by Mostyn J to be published at public expense as a warning that he, at least, is intolerant of those who must (from force of financial circumstance), or who chose – as is their right – to conduct their own litigation was recently published, and includes:

[8] The courts are now being visited with an increasing number of informal applications made by litigants in person. As I have said in this case, Mr. Downe acts as a litigant in person by election [ie he has the means to pay but chooses not to]. I am taking the opportunity in this judgment, which will be transcribed at public expense and placed on Bailii, to explain, both for the benefit of Mr. Downe and for any other litigants in person, that the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed for the procedure that is prescribed for all applications that are made to the court.

So says Mostyn J – or he appears to say – courts are not there to help litigants in person. Unlike the ‘Good Samaritan’ – and, for that matter, many lawyers who act free (pro bono) – it is not the judge’s job, or that of the court staff, to cross the road.

Clarity and the family judge

It is not for the judge, for example, to help a layperson to understand rules (drafted, some of them, by one Mr Nicholas Mostyn). These rules can be stunning, I would guess, in their lack of ease of access for most ordinary people. Mostyn J went on:

[8] … The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land.

Mostyn J continued. He explained the Family Procedure Rules 2010 Part 18 procedure (ie ordinary court applications made in the course of existing family proceedings) in language which most litigants in person will find difficult – impossible perhaps – to understand:

[9] [The Part 18 procedure] requires an application to be made. It requires a fee to be paid. It requires a draft order to be supplied. It requires the relief that is sought to be clearly specified. None of that has happened here. Even now I am unable to understand what relief Mr. Downe is seeking in circumstances where his complaints are entirely academic by virtue of the fresh undertakings given to Moor J on 27th June 2014. As I have already said, but I reiterate, there is no requirement for an undertaking which is given in the face of the court and recorded in the transcript to be separately recorded in a general form of undertaking (italics added by me).

Undertakings and orders

The case concerned a return date freezing order injunction application (ie an order had been made, and it was coming back to court for it to be reconsidered, this time by Mostyn J). The judge said:

[1] … I was doubtful whether the relevant criteria for making an ex parte freezing order, as summarised and explained by me in the case of UL v BK [UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam),  Mostyn J], had been met.  However, the Respondent husband offered me in court an undertaking to preserve two funds [set out]….

[2] On that basis counsel for the wife, Mr. Mitropoulos, drafted an order containing that undertaking and in accordance with the usual practice drafted a general form of undertaking for Mr. Downe to sign.  Mr. Downe, however, refused to sign the general form of undertaking.

The judge went on to confirm that the signing of the form ‘is not a requirement for the giving of an effective undertaking.  That undertaking had plainly been given in the face of the court’. If authority for this proposition is required it can be found in Zipher Limited v Markem Systems and Technologies [2009] EWCA Civ 44 and Hussain (cited in the Zipher quote below). Mostyn J does not mention these cases.

In the Zipher case Lord Neuberger MR said:

[19] An undertaking is a very serious matter with potentially very serious consequences. It is a solemn promise to the court, breach of which can lead to imprisonment or a heavy fine. Accordingly, there should never be room for argument as to whether or not an undertaking has been given. … Accordingly, any undertaking should be expressed in full and clear terms and should also be recorded in writing.

[20] None of this is either controversial or original. Unsurprisingly, it is well established. In Hussain v Hussain [1986] Fam 134, Sir John Donaldson MR said at 139H that “an undertaking to the court is as solemn, binding and effective as an order of the court in like terms”. He went on to observe at 140E that “it is in all cases highly desirable that any undertaking to the court shall be recorded and served on the giver personally”. As he immediately went on to say, the “most obvious and convenient way … is to record the undertaking in an order of the court …”. Neill LJ … went on to emphasise the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached. Ralph Gibson LJ agreed with both judgments.

Family Procedure Rules 2010 Part 18: European Convention 1950 Article 6

What will a litigant in person make of the word ‘relief’ (see para 9 above)? The modern word is ‘remedy’, which accords with the original Latin ubi jus ibi remedium (where there is a law, there must be a remedy). Without some help from the court, where can a lay person find an idea of what the remedies might be.

Perhaps some people can understand Mostyn J’s irritation with Mr Downe; but a modern judge is not paid to be irritated by this sort of thing. By the way, I am familiar with work which is being done by the judiciary generally on how courts should deal with litigants in person: Judicial Working Group on Litigants in Person: report (Judiciary of England and Wales, July 2013) – http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf .

Family courts and a fair trail

If a family courts judge approaches a case in the way that Mostyn J did, there is a real question as to whether the court – in this case the High Court, Family Division – is complying with its duties to provide a fair trial. I have appeared before Mostyn J in a mood to ignore – or ride rough-shod – over the law, rules and existing practice guidance. I was able to put him right. I knew the rules and that rules he referred to did not exist. In the particular case (unreported) he ignored me, all the same.

Where is a litigant in person to be where basic rules of fairness, and sometimes the common law and procedure, are ignored in such a way as does Mostyn J?

English courts must comply with the Convention (Human Rights Act 1998 s 6(1) and (3)(a): ie to ensure a fair trial). If they do not they can be hauled up on appeal (HRA 1998 s 9(1)). Judicial unhelpfulness and obstructiveness towards litigants in person must rank firmly in the direction of a court’s failure to provide a fair trial.

WHY FAMILY LAW GETS PRIVACY WRONG – response to ‘transparency’ consultation

RESPONSE TO CONSULTATION: ‘Family Transparency: the next steps’

This is not a blog, but merely a means of publicising my response to the ‘transparency’ consultation. I ssek to show that for a long time family lawyers have misunderstood the common law, when it comes to privacy and open court justice. Court rules may be ultra vires. The short point is that privacy in any case must be justified; though in certain categories of case (eg children law) justification will be relatively straightforward.

Consultation paper from Civil and Tribunals Judiciary

A REPLY BY DAVID BURROWS

The CTJ consultation paper

  • The paper starts by setting out the views of the CTJ, expressed by Sir James, as follows:

A key element of the family justice reforms is the transparency agenda – finding ways of opening up the workings of the Family Court to public scrutiny so as to increase understanding of what we do and how we do it, whilst at the same time preserving confidentiality and respecting the private and family lives of those whom the system serves.

The underlying principles are two-fold. First, there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. Secondly, the public has a legitimate interest in being able to read what is being done by the judges in its name.

  • It goes on to point out that Sir James had ‘announced’ that he would be issuing a consultation paper. This, says the CTJ document, is that paper. It invites comment on four areas of family proceedings work:
  • Comment or Sir James’s Practice Guidance of 16 January 2014
  • Secondly the CTJ seek views on the listing of cases.
  • Thirdly the CTJ seek views on further ‘guidance’ which, it is said, Sir James ‘proposes to issue (sic)’ on disclosure of documents to the media.
  • Finally the paper seeks ‘preliminary, pre-consultation views’ on the hearing in public of certain types of family case.
  • This reply will concentrate on the third and fourth invitations. It will touch on the first only to the extent of urging those who run the family courts system first to respect ordinary rules of precedent. That should be the extent of Sir James’s concerns with law-reporting.

Summary of reply

  • This reply will start by seeking to define the common law bases for open justice – civil or criminal; and it must be done, and seen to be done (the Sussex Justices principle). This reply will assume that family law is but part of the civil justice system; not, as Sir James has often reminded us, part of some lawless Alsatia separate from the rest of civil justice.[1]
  • The open justice principle applies to all family proceedings. There are statutory exceptions to this, which will prevent or inhibit those who may attend a family hearing and the extent to which that hearting can be reported (Sir James clearly explained these exceptions in Re J (A Child) [2013] EWHC 2694 (Fam)). FPR 2010 r 27.10 and much of r 27.11 (which declares that proceedings covered by FPR 2010 are ‘private’ and purport to sanction certain media attendance at court) are probably unlawful at common law and made ultra vires the rule-makers.
  • The same applies to publicity for documents in family proceedings, save to the extent that the common law (summarised in CPR 1998 r 31.22) inhibits their ‘use’; or to the extent that they are derived from a hearing which in law or by judicial direction is held in private.
  • I shall therefore start by defining what I understand to be the common law on open justice. I shall explain how the common law and statute have restricted openness in respect of court hearings and of documents which are disclosed and produced at those hearings (including witness statements and expert’s reports). I shall conclude this part of my reply by asserting that family law must come out of its developing Alsatianisation. Its judges must apply the common law.
  • If this common law approach to family proceedings is recognised, then the job of family lawyers, judges and of would-be reporters of family proceedings would be relatively much easier.
  • I shall suggest that, so far as the consultation paper is based on assumptions on openness which are not in accordance with common law and statute it is redundant. The ‘open justice principle’ needs to be applied clearly to family proceedings. The vires of FPR 2010 rr 2710 and 27.11 need to be properly reviewed through a common law prism; and the common law and statutory exceptions to open justice must be clearly set out for family lawyers and the press fully to understand and apply.
  • This paper therefore proceeds as follows:
  • Open justice
  • Open justice: common law and Civil Procedure Rules 1998
  • Law-making: practice directions, practice guidance and precedents
  • Documents and open justice
  • An good starting point for family law reformers would be to consolidate into one statutory provision the exceptions to common law rules in relation to children proceedings (eg in AJA 1960 s 12and CA 1989 s 97). In one clear provision the law in this area would be so much easier than now, for the many lay people concerned, to understand.

(1)        OPEN JUSTICE

‘The open justice principle’

  • A modern statement of the ‘open justice principle’ is to be found in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 per Toulson LJ:

[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.

‘Disclosure to the media of documents’

  • Though the Guardian case turned on the third main element upon which the consultation paper is concerned neither it, nor the later Kennedy case (which approved it) are mentioned. Yet, from at least the time of Bentham the principle that the press – now more widely terms the media – is society’s watchdog has been a cardinal principle of English law. The courts may not edit what the press, or others, choose report. This is fundamental to our society. The common law is ‘declared’ (as Lord Diplock described the process) in European Convention 1950 Art 10, as amplified by Human Rights Act 1998 s 12.
  • The extent of press freedom was explained fully by Sir James Munby P in Re J (A Child) [2013] EWHC 2694 (Fam) where he reminds the reader (especially at paras [20] to [40]) of his own, and number of other, cases on the subject. Sir James stresses the balance which may have to be struck between the respect for privacy for children and the right of parents and the press to give publicity to family cases. This applies especially in care and adoption proceedings.
  • In Re J, it will be recalled, a father had posted information about his daughter’s care case on ‘face-book’. Sir James defended the right of individuals aggrieved by the family court process to post their grievances on the internet, even when expressed in ‘vigorous, trenchant or outspoken terms’. He said: ‘there is a pressing need for more transparency, indeed for much more transparency, in the family justice system’.

Family lawyers: the wrong end of the telescope

  • The common law says ‘open justice’ is the starting point (explained by such House of Lords authority as Scott (above), Attorney General v Leveller Magazine Ltd [1979] AC 440 per eg Lord Scarman at 469 and so on down to Kennedy). FPR 2010 r 27.10 says the opposite. Which is right? (In much of what is written on this subject ‘transparency’ is the term used by family lawyers, adopted also by the CTJ paper. In fact family lawyers mean the opposite of ‘transparency’. They mean the extent to which FPR 2010, the court and the press permit the common law to be stifled – whether rightly or not, in subjective family terms – and thus the open justice principle to be subverted.)
  • The starting point for any debate on privacy in any civil court must be the common law. This is the correct end of the telescope from which to look. A substantial proportion of family lawyers (see eg some of the assumptions on which the CTJ paper is based and the response to it by Resolution (representing 6,000 family lawyers, mediators etc)) look into the telescope from the wrong end. They start from a presumption of privacy. Sir James is, mostly, an honourable exception to working from this assumption.
  • The common law starts from openness. Privacy can apply, where statute or the common law so assert; not where mere procedural rules (eg rr 27.10 and 27.11) – perhaps illegally – seek to provide. Openness is the correct end of the telescope to look from.

Fundamental rights: common law ‘the starting point’

  • If the common law is to be overridden this can only be by express statutory authority. Press freedom is guaranteed by European Convention 1950 Art 10. Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law (as summarised by eg CPR 1998 r 39.2(1)), confirms Art 6: ‘The general rule is that a hearing is to be in public’. Neither of these creates law, common law or otherwise. They merely provide a summary of what the law already says.
  • Having said all that, there is no question that Parliament is empowered to legislate in a way which is contrary to common law rights; but if it does so it must do so in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien [1999] UKHL 33; [2000] 2 AC 115 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners):

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

  • Privacy is not a matter for Parliament, since privacy is already provided for by the common law (as I explain below). The involvement of Parliament can only arise if Parliament decides to alter the common law and Human Rights Act 1998 s 12 and European Convention 1950 Art 10. There is no evidence of any Parliamentary will for promotion of privacy. Were there to have been it might have been incorporated into Children and Families Act 2014.

Statutory inhibitions on open justice

  • Open as against private justice concerns fundamental rights. Legislation at present is very limited, the most obvious being Administration of Justice Act 1960 s 12 (as explained by Sir James in Re J [2013] above). The fundamental position protected by the law is that all court hearings – civil (which includes family) as well as criminal – should heard in public. Any derogation from this must be justified: Convention rights and freedoms (the freedom to publish, being one), must be balanced against the open justice principle (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593). This is the correct end of the telescope.
  • Family lawyers have tended to think that hearings should be in private with open justice being the exception. The history to this state of affairs is traced by Thorpe LJ in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565. Family courts have therefore appropriated the term ‘transparency’.
  • This is wrong. A fundamental right, protected by the common law, can only be changed by express primary legislation (R v Secretary of State for the Home Department, exp Simms per Lord Hoffman (above); and see per Lord Hoffman again in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563, [2002] 2 WLR 1299).

Family proceedings and the ‘open justice principle’

  • FPR 2010 r 27.10 is as follows:

27.10 Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise.

(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.

  • FPR 2010 r 27.11 (as relevant here) then continues:

27.11 Attendance at private hearings

(1) This rule applies when proceedings are held in private, except…

(2) When this rule applies, no person shall be present during any hearing other than –

(a) an officer of the court;

(b) a party to the proceedings;

(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

(d) an officer of the service or Welsh family proceedings officer;

(e) a witness;

(f) duly accredited representatives of news gathering and reporting organisations; and

(g) any other person whom the court permits to be present.

(3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that –

(a) this is necessary –

(i) in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced.

(4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the persons listed in paragraph (5), and in either case having given to any person within paragraph (2)(f) who is in attendance an opportunity to make representations.

(5) At any stage of the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) in accordance with paragraph (3) –

(a) a party to the proceedings;

(b) any witness in the proceedings;

(c) where appointed, any children’s guardian;

(d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings;

(e) the child, if of sufficient age and understanding.

(6) This rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for examination.

(7) In this rule ‘duly accredited’ refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor.

  • No vires for this rule are provided for, in the usual way: that is to say, by statute. The introduction to FPR 2010 states, in terms of general rule-making powers, that ‘the Family Procedure Rule Committee makes the following rules in exercise of the powers conferred by sections 75 and 76 of the Courts Act 2003…’. There is no reference to any power in the Family Procedure Rules Committee (‘FPRC’) to make rules which, in effect, override fundamental rights such as those protected by the open justice principle.
  • FPRC powers are proscribed entirely by Courts Act 2003 ss 75 and 76. There is no statutory provision – and all powers of such a body as FPRC must be defined by statute – which enables FPRC to override the common law, still less to override the European Convention 1950.
  • The probability is that r 27.10 as a whole, and at least those parts of r 27.11 which are italicised above, are ultra vires the rule-makers and therefore a nullity.

Open court: the correct end of the telescope for family lawyers

  • So what is the position in law on open justice within civil proceedings generally (which includes family proceedings)? The common law rule is that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords).
  • Publication on its own is not to be punished, said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

… unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally.

  • As Toulson LJ mentioned (at para [33] of Guardian v Westminster), another aspect of the open justice principle was picked up by Lord Scarman – ‘a thinker ahead of his time’, and in a minority in Harman (on a point which has now been altered to the position advocated by Lord Scarman: see CPR 1998 r 31.22) at that stage – in Harman v Home Office[1983] 1 AC 280, 316. Of open justice he said (at 316):

… [The judge] is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.

(2)        OPEN JUSTICE: COMMON LAW AND CPR 1998

Common law and Civil Procedure Rules 1998

  • Probably the easiest version of the common law to follow is as declared – ie the common law principle existed long before 1998 – in CPR 1998.
  • CPR 1998 rr 31.22 and 39.2 set out the principles relevant to what is under discussion here. Rule 39.2 (it makes more sense to consider r 31.22 later) provides as follows:

39.2 General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the 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;*

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

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

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

  • Each of the sub-paras marked * would be relevant to family proceedings; and with these and any other accretions to the common law specific to family proceedings this rule would seem to be sufficient – as it is in all other civil proceedings – to dictate when a court should sit partly or entirely in chambers. That is to say, all hearings must be in open court, and any hearing in private must be justified one or more of the grounds set out in r 39.2(3) or in any other statutory provision (eg Administration of Justice Act 1960 s 12).

Common law and family proceedings

  • So what is the law today? There is no doubt. The common law rules. It dictates what the law is and what the family courts should follow. It represents the correct end of the telescope to place the lawyer’s eye. The common law can only be altered by express primary statutory provision, if that is what the legislature seeks (for which there is no evidence). FPR 2010 r 27.10 cannot alter the fundamental freedom of expression, essential to our common law.
  • The common law – as expressed by CPR 1998 r 39.2 above – serves perfectly well; and it is the common law, it is respectfully submitted here, which family court judges should follow.
  • The third subject in the JTC paper is release of documents to the media. Again, the common law deals with this as Toulson LJ explains fully in Guardian v Westminster. Family proceedings rules on disclosure, as FPRC assert (see their letter to me dated December 2013[2]), is essentially a matter for the common law.
  • The common law is declared by CPR 1998 r 31.22 and sets out a jurisdiction which arise from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides questions of ‘use’ (in this context) and the publication of proceedings overlap (considered by me further in Family Law News [2014] of 6 August 2014: Reporting restrictions in financial remedy proceedings: a review after case management in Cooper-Hohn’ (referred to above).

‘Use’ of documents

  • CPR 1998 r 31.22 (as relevant here) provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

  • There is no equivalent in FPR 2010 or in family procedural rules generally to CPR 1998 rr 39.2(3) or 31.22.
  • Issues of publicity for a hearing or of documents therefore arise in family proceedings, and in financial remedy proceedings in particular, in the following contexts:
  • Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
  • Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
  • Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
  • Even if (3) applies, whether a party can be restrained from use of the document.

Documents in financial remedy proceedings

  • The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo[2010] EWCA Civ 1315, [2011] 1 FLR 1427 provides a starting point:

[76] Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

  • CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. References to r 39.2 in family proceedings arise mostly only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108: by contrast in DE v AB [2014] EWCA Civ 1064 Ryder LJ managed to deal with privacy without any reference to r 39.2(3) at all).
  • In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

  • Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.
  • Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

  • If a document has been ‘read to or by the court, or [has been] referred to, at a hearing which has been held in public’ it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2:

… [25] (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.

  • In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are likely to be resolved (see eg Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)). Mr Allan’s application, on analogy with 31.22(2), failed before Munby J and before the Court of Appeal.

Release of documents to a third party

  • A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO [2014] EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents.
  • Each case, Eder J emphasised, turns on its own facts (Crest Homes v Marks[1987] AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd [2004] 1 WLR 1479 at [36]). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104, CA at [47], [52]; but see eg Y v Z [2014] EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).

(3)        LAW-MAKING: PRACTICE DIRECTIONS, PRACTICE GUIDANCE AND        PRECEDENTS

Common law

  • Substantive legislation (eg Matrimonial Causes Act 1973, Children Act 1989) creates new law; but it may also codify or confirm the common law (eg Senior Courts Act 1981 s 37 merely confirms the High Court’s inherent jurisdiction generally to grant injunctions: by contrast MCA 1973 s 37(2) creates a new jurisdiction to restrain disposal).
  • Procedural rules, cannot create new law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). They can only do what the primary legislation enables them to do (as explained above in relation to FPR 2010, FPRC and its powers under Courts Act 2003 ss 75-76).

Practice Direction, Practice Guidance and ‘gap’ rules

  • Practice guidance divides into Practice Directions, Practice Guidance and ‘gap’ rules. Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice, who can delegate to the President of the Family Division (family proceedings Practice Directions issued by the President are endorsed as being approved by the LCJ).
  • The limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.
  • Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors (above) at para [7]-[9]) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs)[2001] 1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC [2005] EWCA Civ 475 at para [48] for practice directions:

It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

‘Gap’ rules

  • If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras [37]-[39]). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be.
  • A recent breach of this principle can be seen in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In that case Mostyn J issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors [2010] EWCA Civ 908: private documents taken by one spouse unknown to the other). The ‘guidance’ was no part of the ratio of the court’s decision. It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the Law Society or the Bar Council). It fills no Bovale gap necessary to enable the court to resolve a disputed issue in that case.
  • By contrast, an example of how a ‘gap’ practice direction may fairly be given by a judge can be seen in operation by Keehan J in A Local Authority v DG & Ors [2014] EWHC 63 (Fam). He set out what he proposed as practice guidance for a parent who was being prosecuted in proceedings parallel to care proceedings, and gave advocates involved a chance to be heard by him on what he proposed. A Bovale gap was filled. The law was correctly and fairly applied.

Rules of reporting family cases

  • It must follow from the above that a reporter does not need the court’s permission in any case to report it, subject to the substantial inhibitions placed upon him/her by any court order or by the statutory controls in eg Administration of Justice Act 1960, CYPA 1933 and Children Act 1989 s 97 (especially in relation to children proceedings). The 16 January 2014 Guidance is, to that extent, unnecessary.
  • It is for the reporter to decide what should be reported, and for the press to take any risk of an application to commit (see Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 (above)). Nor is it for the judges to advise the press as to what they may or may not publish, as Sir James (then Munby J) pointed out in Spencer v Spencer [2009] EWHC 1529 (Fam) (recalled eg by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam)).

Precedent and citation of authorities

  • The fact that a judgment is published does not mean it is a precedent in any real sense of the word; still less does it mean that it is read. Citation depends on the authoritativeness of what is reported. A summary of what courts permit to be cited is in Practice Direction of 9 April 2001: Citation of Authorities [2001] 1 WLR 1001.
  • This practice direction direct – and it remains good practice in all courts – that save where a judgement clearly indicates that ‘it purports to establish a new principle or to extend the present law’ (para 6.1) certain categories of case may not be cited at all in court (para 6.2) (ie citation, on this criterion, is unlawful):
  • Applications attended by one party only
  • Applications for permission to appeal
  • Decisions which establish only that a case is arguable
  • All county court cases (there was no family court then) save to deal with an issue not decided at higher level which affects decisions at county court level.

(4)        DOCUMENTS AND OPEN JUSTICE

Use of court documents

  • Release of documents to a third party – essentially as covered by CPR 1998 r 31.22, which can be said to represent the common law and to apply in family proceedings – is the subject of the third part of the consultation. An essay to deal with the subject at common law is herewith.
  • The lead case is R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as approved by Kennedy v The Charity Commission [2014] UKSC 20 (decided after the essay below was written). Neither of these cases are referred to in the CTJ paper.
  • A simple conclusion, which answers the third part of the CTJ paper (‘III’) on a principled basis, is that the common law rules set out in CPR 1998 r 31.22, apply to all family proceedings. This is a conclusion in line with the Court of Appeal in Allan v Clibbery. If courts follow the common law – which they must – then therein lies the answer to III; and no more need be said.
  • If family judges feel they need principles to be enunciated that is for them, not for the CTJ or for Guidance from Sir James (for the reasons set out in section (3) above). The guardian case is the starting point; CPR 1998 r 31.22 the common law in summary; and, where need be, a European Convention 1950 balance between Arts 6(1), 8 and 10 (with Human Rights Act 1998 s 12(4) leavening, as need be) will be required to be conducted.
  • If children or other factors requiring privacy are involved then principles summarised on CPR 1998 r 39.2(3) will apply.

REPLY TO CTJ CONSULATION

‘Transparency’: family court emperor’s clothes

  • ‘Transparency’ is a euphemism used by family courts to justify often unlawful privacy. The history of this development is outlined by Thorpe LJ in Allan v Clibbery. Use of the term gets the law the wrong way around (the ‘wrong end of the telescope’ argument summarised above). Now is surely the time for Sir James to follow the logic of so many of his own decisions – starting with Allan v Clibbery at first instance – and to play the small boy at the family law privacy emperor’s court.
  • The panoply of case law and court rules all come down to there being no rule of privacy: the privacy emperor has no clothes. FPR 2010 r 27.10 is unlawful. In each family case – and general principles to define exceptions will be quickly developed by the common law, that is by family judges – open justice is the rule. To control indiscriminate open court hearings in family proceedings, common law principles (as summarised in CPR 1998 rr 39.2(3)) apply. This is a matter of law.
  • In respect of documents, CPR 1998 r 31.22 is the starting point, as further explained by ota Guardian v Westminster; and as elaborated upon in the essay below.
  • In the meantime the 16 January 2014 ‘guidance’ in the form put out by Sir James is not strictly necessary. It is based largely on a misunderstanding (see eg discussion of the vires of FPR 2010 r 27.10 and 27.11) as to the role of the common law and the open justice principle in family proceedings, balanced against the common law and existing statutory constraints upon that principle in family proceedings.

Reply

  • The CTJ paper invites comment on four areas of family proceedings work (as already summarised):
  • Comment or Sir James’s Practice Guidance of 16 January 2014. This Guidance is very personal to Sir James and shows no signs of having any real force in constitutional terms (see eg Constitutional Reform Act 2005 and Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171).
  • Listing of cases (outside the scope of this reply).
  • Further ‘guidance’ which, it is said, Sir James ‘proposes to issue (sic)’ on disclosure of documents to the media.
  • ‘Preliminary, pre-consultation views’ on the hearing in public of certain types of family case.
  • I feel I can offer little on (2); and that what I say about ‘guidance’ issued without reference to Constitutional Reform Act 2005 or Bovale is sufficient. Consultation on (4) is redundant if family courts consider themselves bound by common law and European Convention 1950 principles (as set out above). In my opinion they are bound by such principles; and that opinion is bolstered by a number of Sir James’s own decisions since he became a High Court judge.
  • Of (3): if the common law (summarised in CPR 1998 r 31.22) is applied – as, once more, I say it must be – then the need for any more on the subject of documents disappears. I commend my essay below on applicable legal principle (below) to CTJ (and to Sir James if it is he who takes this on for CTJ), on the subject of release or other ‘use’ of court documents.

OPEN JUSTICE AND PRIVACY IN FAMILY PROCEEDINGS

A new definition of privacy and open justice and family proceedings

  • The common law rule for any civil (including family) proceedings is simple. Privacy in any case must be justified. (FPR 2010 rr 27.10 and 27.11, and any other similar FPR 2010 rule, are to that extent unlawful, and should be revoked as soon as possible, please).
  • Justification of privacy in many family court cases and by reference to common law principles summarised in CPR 1998 r 39.2(2) will often be relatively straightforward. In children cases at least three statutory restrictions apply (as fully explained by Sir James in Re J [2013] (above)).
  • Release and other ‘use’ of documents will be governed by the common law as summarised in CPR 1998 r 31.22, as explained by the case law referred to in the essay below and as acknowledged by FPRC itself in their letter referred to above.
  • The CTJ paper asserts:

The underlying principles [of ‘transparency’] are two-fold. First, there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. Secondly, the public has a legitimate interest in being able to read what is being done by the judges in its name.

Open justice: an absolute; justification of privacy

  • The need for ‘greater transparency’ is guaranteed by common law: indeed openness in justice is an absolute (see eg European Convention 1950 Art 6(1)).
  • Subject to appropriate judicially directed redaction, the public – so far as they want to – may read what is done in the family courts (the Sussex Justices principle). Any restriction of open justice must be justified according to legal principle (eg CPR 1998 r 39.2(3)).
  • In children cases there are a number of statutory exceptions to open justice, and thus limitations on, for example, liberty to ‘read’ or otherwise use documents from proceedings; and in other types of proceedings, r 39.2(2) exemptions may be used to support a privacy claim under r 31.22. This may depend, for example, on whether documents were ‘read’ in court, or whether an implied undertaking as to further use of disclosed documents applies.

‘Open justice principle’ in family proceedings

  • If the short set of principles summarised here are agreed to be a summary of English common law then it remains only to assert the ‘open justice principle’ in all family proceedings, to revoke offending rules, and to be clear as to the varied sources – statutory and common law – of the principles which guide restrictions on openness.

David Burrows

31 October 2014

1        DISCLOSURE TO THIRD PARTIES: GENERAL PRINCIPLES

Collateral disclosure

  • The rights of a party under European Convention 1950 Arts 6(1) and 10 bring into question the extent to which documents produced in court may be released to a third party whether (say) for publication or for private use. Here the public interest in an open trial – ‘the open trial principle’ – can be seen in conflict with the principle that a person who discloses documents in private litigation suffers a real incursion into his/her privacy. Any earlier case law, especially where procedures in the family court may be thought to conflict, must be seen in the light of the common law principles explained in Guardian v Westminster Magistrates’ Court (below).
  • As will be seen particular questions arise in family proceedings: the interests of children raise their own concerns. Financial remedy proceedings may give rise to special rights not to disclose derived from the concerns of family judges that spouses are not discouraged from disclosure by fear that their information will be passed on to others such as for tax assessment. A party producing documents in financial remedy proceedings may be covered by a measure of self-incrimination privilege, for example in respect of disclosure to tax authorities (R v K [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807). Subject to that disclosure is a matter which is regulated by common law principles (as explained in the main reply to the consultation); and by such inherent jurisdiction as the court may have to restrict disclosure.

Court’s inherent jurisdiction to control its own procedure: open justice principle

  • The jurisdiction of a court to permit release of disclosed documents (for example for publication) was considered by the Court of Appeal in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343. The court considered that each individual court’s jurisdiction to control disclosure of documents, where those documents had been used in court, was a matter for a court’s inherent jurisdiction to control its own procedure (and seeAttorney General v Leveller Magazine [1979] AC 440).
  • Such procedure was governed by the ‘open justice principle’ said Toulson LJ. It was founded in the common law. (The approach of Toulson LJ to common law development in this case is specifically approved by the Supreme Court in Reilly’s Application for Judicial Review [2013] UKSC 61, [2013] 3 WLR 1020 at [61]; and again in Kennedy v The Charity Commission [2014] UKSC 20).
  • It is a matter for the individual court to which application for release of documents is made, to determine to what extent this principle applies:

[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….

[73] More fundamentally, although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention.

  • These general principles must now be considered in the light of particular circumstances:
  • Where permission to use documents for publication (ie release of documents so they can be published or otherwise seen by third parties) is requested
  • Where permission is sought for disclosure to government authorities (eg HMRC)

2        PERMISSION FOR PUBLICATION

Permission to third parties

  • In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 the Court of Appeal reviewed the law on access to court records and documents, in the light of Human Rights Act 1998 and of common law developments in England and Wales and abroad. Toulson LJ, with whom Lord Neuberger and Hooper LJ agreed, recognised (at para [90]) that the court’s decision ‘breaks new ground in the application of the principle of open justice’ but not, he thought, ‘in relation to the nature of the principle itself’.
  • The case concerned a successful United States extradition application of two men on bribery charges. The Westminster magistrate had held that she had no power to release to the Guardian documents which she had read and to which she had made reference in court. The Divisional Court agreed with the magistrate. The Court of Appeal considered the law afresh. It allowed the appeal and ordered that the Guardian should have access to the papers.

[87] In this case the Guardian has put forward good reasons for having access to the documents which it seeks. There has been no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. Accordingly, its application should be allowed.

‘The open justice principle’

  • In the course of his judgement Toulson LJ (at [33]) referred to Harman v Secretary of State for the Home Department [1983] 1 AC 280. He suggested that the principles set out in Harman can be said to be restored by r 31.22. In Harman Lord Scarman (at 316) made the following point on open justice:

‘… Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.’

  • He then refers (at [34]) to Lord Bingham CJ in the Court of Appeal in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 AllER 498 (at 511-512):

Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.

  • The court stressed the fact that for open justice to work in practice – where judge’s pre-read and where much evidence is in writing and literally taken as read – then it must be axiomatic that documents be released. This will be subject to any argument that public or third party disclosure will cause any risk of harm which may be caused to ‘the legitimate interests of others’. Toulson LJ explains this principle as follows:

[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…. 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.

3        APPLICATIONS FOR ‘USE’ BY THIRD PARTIES

Third party claims for release of financial remedy documents

  • A different set of principals can be seen at work where third party application is made for documents disclosed in financial remedy proceedings (eg under MCA 1973). This may occur, for example, where HM Revenue and Customs seek documents or information which has been disclosed. (Release to the Child Support Agency has now been put on a statutory footing: ). In the absence of agreement of both parties, the documents can only be released if the court orders. The principle was explained in the following terms by Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2010] EWCA 1315, [2011] 1 FLR 1427:

[76] Parties to a matrimonial dispute who bring before the court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

  • High Court authorities conflict. The only reported example of the Clibbery v Allan (above) principles being tested in the High Court since introduction of Family Procedure Rules 2010 arises in Revenue and Customs v Charman & Anor [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119, Coleridge J. Unfortunately Coleridge J does not reflect upon the common law position referred to above; and treated himself as proceedings under a rule which could not apply (FPR 2010 r 29.12(1)). He does not appear to have been referred to Guardian v Westminster Magistrates’ Court (above; though HMRC v Charman was decided seven weeks after the Guardian case). He does not look at the issue in the context of, or on analogy with, r 31.22 (as did the Court of Appeal ten years earlier in Allan v Clibbery (above; though Coleridge J does refer to Allan v Clibbery).
  • HMRC v Charman is directly in conflict with the views expressed by Charles J in A v A; B v B (considered separately below). That case considers the separate but analogous principle of whether a judge him/herself has any separate role in disclosure of documents to public authorities. Coleridge J only considers two cases in his judgement, and A v A; B v B is not one of them.

4        PRODUCTION ON COURT’S INITIATIVE

Report by the court

  • A separate question arises as to whether, and if so when, a judge should take it upon him/herself to report what may be regarded as abuses arising from the proceedings. This question was considered in considerable detail by Charles J in A v A; B v B [2000] 1 FLR 701. The judgement is technically obiter; but it contains a number of insights into the basis on which a judge might look at the issues of confidentiality which arise where the court is considering referring on to public authorities, balanced against the public interests which arise in such a case. Charles J pits his own views of such matters against those which can perhaps be seen in the two decisions on the same subject of Wilson J.
  • In the later Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 the Court of Appeal considered A v A; B v B but only in neutral terms (at para [70]) and without substantive comment. It remains the fact that this jurisdiction has not been considered (save in Allan v Clibbery) in any detailed way in the Court of Appeal, still less in the Supreme Court. Confronted by an application by a third party (such as HMRC) the adviser has no principled higher court guidance as to the principles to be applied.
  • A v A; B v B involved two ancillary relief claims which had been listed together before Charles J, because the two husbands’ joint business interests meant there was a considerable overlap in their financial affairs. By the time of the hearing the husbands had admitted attempting to hide the true extent of their assets and of their tax liabilities. Agreement was reached at the end of the first day, and consent orders were approved by the court. Before the orders were drawn up, Charles J indicated that he was considering whether to refer the papers in the case to various third parties, including the Inland Revenue and the DPP. The cases were adjourned to enable the parties to prepare argument on issues relating to disclosure. The judge sent a draft judgment to the parties which dealt with issues of disclosure to public authorities, to give them an opportunity to make further submissions.
  • This case will be considered at some length since it provides a full judicial essay in explaining when the court should, on its own initiative, breach any implied undertaking given to it, override the general principles in CPR 1998 r 31.22, and to adopt a principled approach to the overriding of the self-incrimination privilege which otherwise applies in financial remedy proceedings (R v K [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807).

Disclosure volunteered by the court

  • Charles J (at 711-2) started from the proposition that there was no clear authority to which he had been referred or that he had found ‘relating to the approach the court should adopt in deciding whether itself to initiate and make disclosure of material coming to its attention’. He referred extensively to the decisions of Wilson J in S v S (above) and R v R (Disclosure to Revenue)[1998] 1 FLR 922.
  • These cases, he said, confirmed the lack of directly relevant authority. He distinguished his decision from that of Wilson J. Those decisions were concerned with granting permission (prospectively or retrospectively) to a party to make disclosure or to a third party to receive disclosure. His decision concerned ‘as to what disclosure should be initiated and thus volunteered by the court’. But he continued: ‘…in my judgment the approach to both questions should fall to be determined by the same general underlying considerations’.
  • In either respect – disclosure to third parties on application by a party or third party, or volunteered by the court – Charles J took the view that the factors for the court to

consider were as follows (at 712):

Generally 

In my judgment when a court considers issues relating to disclosure of documents or information it is important to identify why the court’s permission or direction is necessary and thus (i) the relevant statutory provisions or rules, (ii) the extent and purpose of the relevant duties of confidence, (iii) the relevant private interests, and (iv) the relevant competing public interests.

  • Under the heading ‘statute and rules’ he sets out references to Administration of Justice Act 1960 s 12 (which he holds not to be relevant in these proceedings) and the then relevant rules in Family Procedure Rules 1991 as follows:
  • FPR 1991 r 2.66(2)
  • FPR 1991 r 4.16(7) with Re PB (Hearings in Open Court)[1996] 2 FLR 765 on r 4.16(7) which is in similar terms)
  • FPR 1991 rr 10.15 and 10.20

Release of documents to the Attorney General

  • In Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P considered the extent to which that court had a right – a duty even – to release confidential documents to the Law Officers in the context of children contempt proceedings. Papers had been released by the court so that consideration could be given by the Attorney General to an application for committal of a mother in child abduction proceedings. Her advocate – ‘as he was entitled to’ (para [11]) – challenged the standing of the law officers to make application for her committal (the President answered this question fully in paragraphs [14]-[17] of his judgement).
  • Of the court’s entitlement to release documents to ‘some outside agency’ Sir James Munby P said:

[12] It is well known that, on occasions, judges refer the papers in a case which has been before them to some outside agency with a view to that agency considering whether or not to take any steps arising out of the matters referred by the judge. Sometimes the papers are referred to the police, the Crown Prosecution Service or the Director of Public Prosecutions with a view to the possible commencement of criminal proceedings. Sometimes the referral is to some professional or other regulator. Sometimes the referral is to Her Majesty’s Revenue and Customs. Sometimes, as here, the referral is to the Law Officers. No doubt there are other instances. Although the basis upon which such referrals are made has not very often been explored in any depth – the judgment of Charles J in A v A; B v B [2000] 1 FLR 701 is an exception – there can be no question about the right of the judges to act in his way. Nor, in my judgment, can there be any objection to a judge, as here, referring the papers to the Law Officers with a view to them considering whether or not to bring proceedings for contempt; and, I should make clear, whether the contempt is criminal or, as in the present case, civil….

Confidentiality and the court’s order

  • Charles J considers any role he might have in ordering release of court documents in the context of confidentiality. The documents he was considering are confidential documents disclosed in private proceedings. He points out (at 715) that duties of confidence can arise in various ways which include where documents are provided as a duty or volunteered, or in accordance with court rules. The duty of confidence will be defined as follows:

In each case the reason(s) why, and the purpose(s) for which, the information is volunteered, or the duty is imposed will define the extent of the duty of confidence, and thus of the use or disclosure that is authorised without the need to seek the permission of the provider of the information, or to consider where the overall public interest lies.

  • He is clear in his view that confidential information which is disclosed pursuant to statutory or other duties should be used only for the purposes for which it is disclosed (which proposition he backs with extensive authority). It is in the public interest that such disclosure should be limited; but ‘it must be remembered that such limitation includes use and disclosure in the overall public interest’. He connotes these limitations with the implied undertaking’ in relation to disclosed documents.
  • He concedes however, that one of the purposes of the implied undertaking is to induce or encourage litigants to make full disclosure. He cites the comments of Lord Oliver in Crest Homes plc v Marks[1987] 1 AC 829, 857F Lord Oliver as an example:

Mr Morritt, however, on behalf of the corporate appellants, has rightly drawn attention to the importance, stressed in Home Office v Harman [1983] 1 AC 280, of preserving the implied undertaking. It should not be relaxed, it is said, as a matter of public policy, for otherwise litigants may be deterred from making full and frank disclosure.’

  • He concludes his survey of confidentiality, the implied undertaking and the issue before him (disclosure to a third party) by looking at these issues in the light of the ancillary relief jurisdiction. He refers to the duty of disclosure arising from Livesey v Jenkins (at 717):

It is well established that in proceedings for ancillary relief there is a duty on the parties to provide full and frank disclosure as to their means and other relevant circumstances (see, for example, Jenkins v Livesey (Formerly Jenkins) [1985] 1 AC 424, 437H—438A, sub nom Livesey (Fornerly Jenkins) v Jenkins  [1985] FLR 813, 821C and Baker v Baker  [1995] 2 FLR 829, 831—833 and 837). In my judgment this means that parties do not have a choice as to what information they provide relating to their means and other relevant circumstances. In my judgment, such information, whether provided by affidavit, or in answer to questions (before or after orders of the court), is provided under compulsion for the purposes of the application of the implied undertaking.

  • On the basis that ancillary relief proceedings are generally held in private then ‘rights of confidentiality and privilege are reserved in respect of all material provided by the parties for ancillary relief proceedings with the consequence that the implied undertaking applies to all of that material’. Thus, he says, his decision on further disclosure should operate as follows (at 718):

(a) that if a party had sought leave to disclose or use the material the implied undertaking would apply and disclosure or use in breach of it would be a contempt. This corresponds with the point made above under the heading ‘Statute and rules’ that disclosure of material covered by rr 10.15 and 10.20 of the 1991 rules without the permission of the court would be a contempt, and

(b) that in any event the court should apply an approach to those questions equivalent to that taken when the implied undertaking applies.

  • He concluded his decision in relation to confidentiality and the implied undertaking by referring to the absence of statutory provision preventing the court from ordering disclosure. From this absence he concludes that he is entitled to ‘release or modify’ the confidentiality conditions on which documents are disclosed between the parties:

In the absence of statutory provision precluding use in the overall public interest, the general position is that confidential material can be so disclosed, and used, and this is reflected in the cases relating to disclosure of material with the leave of the court, whether that leave is required because of the implied undertaking or by a rule of court (see for example Re Arrows Ltd (No 4) [1995] 2 AC 75, 103H—104,…  Re EC (Disclosure of Material)  [1996] 2 FLR 725, 728E—733H and Vernon v Bosley (No 2) [1998] 1 FLR 304, 319B—D and 344F—G). It follows in my judgment that a court can release or modify the implied undertaking, or give leave to disclose material subject to it, if it concludes that to do so would be in the overall public interest.

  • On the basis of its findings as to the inherent jurisdiction of the court to define its own jurisdiction on this subject (see ota Guardian News and Media Ltd (above)) it seems unlikely that a Court of Appeal faced with this decision, would differ from Charles J, and his view of the extent of his discretion as to disclosure to third parties. And this might be the more so if the public interest (eg that individuals should pay their taxes) is held to demand it.

Relevant public and private interest

  • Charles J summarises how he sees the relevant public interests (at 722), and then the professional duties which arise and impact upon his decision (he had been concerned as to the extent to which lawyers in the case may have permitted the court to be misled). He holds that there are ‘strong public interests’ as follows:
  • In ‘the proper and efficient investigation and prosecution of crime’;
  • That all tax should be paid and that in serious cases evaders of tax should be convicted and sentenced (a ‘factor in this public interest is that taxpayers have a duty to inform the Revenue as to their affairs and cannot remain silent’)
  • In the proper, fair and efficient administration of justice.
  • A v A; B v B was published some years before R v K and must be seen alongside that decision. For present purposes the decision in R v K concerns the extent to which a party to financial remedy proceedings can claim self-incrimination privilege in subsequent criminal proceedings (as compared with a judge dealing with an application to release or ‘use’ documents; or to release information on his/her own initiative). Self-incrimination privilege is available in other proceedings, because disclosure of information in financial remedy proceedings is treated as being required by compulsion. The balancing of public interests in any question of overriding self-incrimination privilege is governed by the Privy Council decision in Brown v Stott [2001] 2 WLR 817, PC.
  • In that case, Lord Bingham explained the qualification of any right to self-incrimination privilege, comprised as it is as part of the right to a fair trial. In particular he stresses the balance of the needs of the individual as against those of the community. He explains his view as follows (at 704):

The jurisprudence of the European court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52.

Release to a public body: the balance after R v K

  • In R v K the Court of Appeal treated Brown v Stott as establishing the following principle:

[41] …. that a restriction of an accused person’s right not to incriminate himself will not infringe his right to a fair trial provided that the compulsion under which the information is obtained is of a moderate nature and the use of the evidence obtained by it represents a proportionate response to a pressing social need.

  • So said the court if they were to allow the Revenue to rely on K’s evidence – in effect to release it for open use (in terms of r 31.22) they must consider the extent of the ‘social need’. In R v K it was to suppress tax evasion; but in the context of the information being required of him originally under threat of imprisonment, which the court regarded as ‘severe’. They reasoned their view of release or not of the information, and their discharge of the balancing exercise required of them, as follows:

[42] … The social purpose for which the Crown seeks to adduce the evidence in criminal proceedings is the suppression of tax evasion. No doubt the protection of the public revenue is an important social objective, but the question is whether the admission of evidence obtained from the accused under threat of imprisonment is a reasonable and proportionate response to that social need. In our view it is not. This is an unusual case in as much as the Crown accepts that without the admissions made by K it has insufficient evidence to maintain a case against him. In many cases information obtained by way of disclosure in ancillary relief proceedings will provide leads that enable the Crown to obtain evidence from other sources that is sufficient to support a prosecution and in such cases there will be no need to rely on evidence obtained from the accused himself. That has not been possible in this case, but even so, we do not think that the need to punish and deter tax evasion is sufficient to justify such an infringement of the right of the accused not to incriminate himself.

Release of documents; self-incrimination privilege

  • R v K dealt with the position as to privilege in respect of information already available to the Crown, and whether it could be deployed in court. A v A deals with the prior position. To that extent the two cases are no analogous. Charles J’s analysis, though obiter, holds true for a judge’s assessment of the balance required to release the information and documents. Whether or not they are covered by self-incrimination privilege is a second stage in the process of their use by the public body concerned.
  • Charles J summarised his judgement with a list of conclusions. Perhaps the most direct and assertive of the role of the judge – to avoid the cheapening of the law (as he sees it) – is as follows (at 746):

(13) It seems to me that generally there is very considerable force in the proposition that as Wilson J said in S v S tax evasion is greedy and antisocial which has the consequence that the court should not condone it, or be seen to condone it, in any way. As Wilson J says in S v S at 777G:

It feels unseemly that a judge to whose notice tax evasion is brought should turn a blind eye to it by not causing it to be reported to the Revenue. In one sense that would almost cheapen the law.

I would go further and say that to do so would cheapen the law.

[1] See comments of Munby LJ in eg Richardson v Richardson [2011] EWCA Civ 79

[2] After careful consideration the Committee concluded that the Family Procedure Rules in relation to disclosure provide as much as is needed. The Committee had not wanted to provide for open-ended disclosure by list, so had included only those provisions that were necessary. The rules in Part 9 (Applications for a financial remedy) and 21 (Miscellaneous Rules about Disclosure and Inspection of Documents) were not restrictive and did not undermine the common law duty of disclosure. It was considered that this was a training issue rather than one that required rule amendment.

FORGET CONVENTION RIGHTS IN PRIVATE CHILDREN PROCEEDINGS: RYDER LJ

Convention rights in child relocation proceedings

It is fashionable nowadays in certain circles to knock the Human Rights Act 1998. In Re Y (Children) [2014] EWCA Civ 1287 Ryder LJ (with whom Longmore and Patten LJJ agreed) rejected an appeal by a father (F) who sought to relocate to the Missouri with his second wife (S), whose family were there. The judge had refused him permission. He had ‘residence’ (as we must now not call it) of the parties two children (aged 11 and 7) by consent. He and S had another child (C). The question arose as to whether the European Convention 1950 Art 8 rights (only, it seems) of that child arose in the proceedings.

Acting in person before the judge the father had argued that C’s Art 8 rights were engaged. Ryder J disagreed (though I do not say he specifically ‘knocked’ the 1998 Act):
[40] Ms Sparrow [appearing pro bono for the father] was right to be circumspect in relation to the Article 8 claim.  It is self-evident that in any application under the Children Act 1989 the Article 8 rights of the subject children and the parents are engaged and the court is a public body whose decisions may interfere with those rights.  On the facts of a particular case the application may engage the Article 8 rights of others, for example the father’s wife [S] and a non-subject child [C].
[41] Let me assume for the purposes of this discussion that on the facts of this case the youngest child [C]’s Article 8 rights were engaged.  Any interference with those rights has to be justified in accordance with Article 8(2).  The interference has to be, (1), in accordance with the law; (2) be necessary in a democratic society; and, (3), be proportionate to the object to be achieved.  Where a child’s Article 8 rights have to be balanced against an adult’s, the interests of the child will prevail.

Convention rights of all involved in the proceedings
In these two paragraphs Ryder LJ has reduced Convention rights engaged by the father’s application to C and to Art 8 only. It will be argued here that others, and their rights, are engaged by this case.

In cases such as this the starting point is often taken to be Re S (Identification: Restrictions on Publication) [2004] UKHL 47 – and this applies in any relevant family litigation – where Lord Steyn said:

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

It is relevant to consider this passage for reasons which will emerge; for Ryder LJ proceeds as follows:

[43] … Parliament has provided a legislative mechanism for [a Children Act 1989 s 8 decision] that is human rights compliant.  It is neither necessary nor appropriate for the Family Court in ordinary private law applications where there are no public law consequences to undertake a separate human rights proportionality evaluation balancing the effects of the interference on each person’s Article 8 rights so as to evaluate whether its decision is proportionate.  Ms Sparrow could point to no jurisprudence to suggest otherwise.  That position is quite distinct from public law applications where such an evaluation is required by reason of the fact that a local authority applicant is a public authority seeking itself to interfere in the rights that are engaged.
Here I must respectfully part company from Ryder LJ; and I do so on Supreme Court and Court of Appeal authority, both of which he is bound by.

As between M and F in respect of F’s application relating to A and B, the children of the family: yes, Children Act 1989 has provided each of them with remedies and the opportunity for a trial of the issues between them. However, neither S nor C are parties to these proceedings. Yet in respect of M’s opposition to the plans of F and S with the three children in their household, neither S nor C have a trial at all, let alone a fair trial. This may be as it should be, and as Parliament intended; but does it in reality make Children Act 1989 Part 2 Human Rights Act 1998 compliant? Even if it does, it does not mean that a public body decision-maker – like a judge – can simply ignore their rights (as I understand Convention rights).

Human rights: Children Act 1989 Part 2

The leading recent case on the need for family courts to have European Convention 1950 issues in mind in Part 2 proceedings is A (A Child) [2013] EWCA Civ 1104 where the recalcitrance of a mother had prevented a father having contact with his daughter over a very long period of time. McFarlane LJ’s concludes the part of the judgment which deals with human rights as follows:

[63] On the question of quite when or how it is that the proceedings as a whole have been conducted in a manner that is in breach of the family life rights of M and her father it is neither right nor possible to do more than point to these matters as being of relevance. Again, in the context of the proceedings [below], there is no one occasion about which it is possible to say that a clear breach of any Art 6 or Art 8 procedural rights occurred. That said, and despite the goodwill and best intentions of the judge, the various officers of CAFCASS and NYAS and those agencies themselves, which I take as read, the resulting process cannot be regarded as a sound or timely procedure for determining the issues that the father had brought before the court in 2011.

Of a case involving a witness (‘X’) – that is a non-party like S in Re Y – in Re A (A Child) [2012] UKSC 60, Lady Hale defined the rights of those involved. This was contact proceedings where X had made serious allegations about the father of a little girl. Lady Hale said:

[25] It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 concerned whether or not a mother should be deported. Her three children were not directly in issue. Though the children were not a party to, nor the subject of, the proceedings – exactly like C – the court was concerned that their rights be recognised. Lord Kerr explained how this should be dealt with in practice: by identifying rights and then identifying whether the court was entitled to interfere with such rights:
[144] … As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests. It also ensures a structured approach to the application of article 8…. where a child’s interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided.

[145] Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”….

European Convention 1950 and child arrangements

With all due respect to Ryder LJ, I cannot see that in Children Act 1989 Part 2 proceedings (sometimes called ‘private law’) there is any difference than the states of affairs described above; and two of the cases involved were Part 2 proceedings.

All those affected by any decision-maker’s decision – whatever the public authority – have rights. Despite what Ryder LJ says at para [43] above, all decision-makers – social workers and judges included – must comply with their duties under Human Rights Act 1998. Where articles which are engaged by a decision conflict, they must be balanced with all children (whose interests may conflict) being taken into account. A proportionality test – is interference justified? – should be applied where Convention rights are to be interfered with. This applies to Children Act 1989 Part 2 as to any other decision-making.

The judges concerned in Re Y may have felt that the rights of S and C were vestigial; though I wonder if they really were? On these facts I would suggest they should have been in the balance and the court’s interference expressly justified.