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

‘Open justice’ in family proceedings

 

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

 

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

 

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

 

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

 

Khuja : ‘what’s in a name?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Parents’ right to petition Parliament: Southend case

 

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

 

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

 

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

 

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

 

Right to freedom of expression

 

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

 

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

 

Release of hearings documents

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Roger Smith: on-line family law – a reply

Hello, David,
I am more than happy to debate the impact of new technology with you. I have been an admirer of your work for many years. Part of the whole point of the Legal Education Foundation’s initiative in the field of technology is to increase discussion of developments.
Let me make an opening point. The nub of my New Law Journal article was not really a focus on automation. My concern is to increase understanding of what is happening at a time when the provision and delivery of legal services is changing very fast and to indicate best practice and interesting experimentation around the world. Unlike Richard Susskind, I am not an advocate of the brave new world that is approaching: I am more of an analyst – with perhaps an exception to which I will return.
The legal world is changing under the pressure of a number of forces which are different though linked in their relationship to technology. The main drive for automation comes through the deployment of artificial intelligence. The main users are the large corporate firms who can afford the initial investment. Their aim is to cut the cost of processing large volumes of documents for the purposes of commercial transactions and litigations. The consequence will be the threatening of large numbers of jobs and potentially a restructuring of the ‘top end’ of the legal profession. There will be less need for trainees, solicitors, paralegals and outhousing if machines replace people in document review. And they will. That is where I think that if a job is predictable then it will be automatable.
“HIgh Street’ practice will be affected in a rather different way. Traditional, geographical based, relatively small firms will be challenged (though not necessarily over-run) by those which are virtual – maybe based, for example, as you are in France and covering the whole country – or under a national corporate brand like Co-operative Legal Services or Slater and Gordon. And note that word ‘like’. I know that both these businesses face specific financial problems. I don’t think that these are integral to their business model. I don’t think you can take a view about whether this is a good or bad thing. It just is. And practitioners will have to take their own response to what is happening.
A different force for change will be the headlong rush by the Lord Chancellor to introduce online courts at breakneck speed. You might think that this likely to be too fast; at a speed which precludes proper piloting; in a manner which is likely to pay no heed to the need for personal assistance highlighted in I, Daniel Blake; and fuelled too much by a desire to flog off valuable inner city real estate. That certainly is what I have repeatedly written. The jurisdiction which is in the advance in this field is British Columbia and it has been notably more humble, thoughtful and gradual in the implementation of its Civil Resolution Tribunal.
Linked to the proposed introduction of matrimonial on-line courts have been the cuts to matrimonial legal aid. These were outrageous and have manifestly left a whole constituency that even the government feels uneasy about drifting without assistance at a time of emotional turmoil. Their position as a whole will not be helped all that much by long overdue easing of definitions of domestic violence. In the light of these cuts, I am interested in how this gap might be met by technology and I have been impressed by interactive websites like the Dutch Rechtwijzer which have tried to leverage the value of the net by directing information to individual circumstances rather than just using a wallpaper model of dissemination. There is a real need here. The proper answer may be reinstatement of legal aid. That ain’t going to happen. We can lament that: I do. But we have to see how we can improve the information and advice to those who have all too much need for it.
The thing that actually got my interest in the field was a presentation at a conference of how the Californian courts had collaborated with an NGO in Canada to produce information on family breakdown. The Families Change programme has now gone national in Canada. This seemed such a good example of how technology is international even if law is irredeemably national. One of the most interesting parts of the project was a focus on the emotional needs of the children involved  rather than those of the parties to the litigation – who would generally be their parents. This seems to me an example of technology allowing an expansion of engagement with the human consequences of legal action that is not usual in conventional legal practice. I am an enthusiast in terms of encouraging such a trend.
So, I have no brief for legal aid cuts or simplistic implementation of on-line courts. And certainly none for any reduction of standards in relation to the rule of law and the quality of court determination. I do think that technology is going to change our whole world. And law will not escape. And there will be good and bad effects. And we need to analyse which are which. And we need to engage in debate and discussion at a specific level about what can practically be done.
Best wishes

A CHILD LAW QUESTION AND A ONE-FAMILY-BREAKDOWN-FILE RULE (Part 1)

Same children, same family breakdown: why different hearings?

I have been asked: why do family courts often list children arrangements hearings and financial provision for, or involving, the same children before different judges – sometimes even on different files. It is the same children. It is and similar children law welfare principles – money or child arrangements – which guide the courts.

The children issues and whether their carer parent can keep their home involves the same children and often similar facts; so why not all before the same judge? Does not separate hearings and different judges offend against the overriding objective in FPR 2010 r 1.1, namely:

 

1.1 The overriding objective

(1)    These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a)ensuring that it is dealt with expeditiously and fairly;

(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)ensuring that the parties are on an equal footing;

(d)saving expense; and

(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

I will try to answer these questions by first setting out what the statutory underlay for all this is; for this area of law is heavily geared to Acts of Parliament. (The exception to this (ie (5) below) is where a couple were not married or in a civil partnership and their property is in issue (cohabitation law). Here, by contrast, Parliament has been unable to work out what – in law – to do about such families.) Then I shall deal with case management and the definition of issues, so critical to progress with family proceedings.

Statutory provision

Parliament says:

  • Children Act 1989 (CA 1989) s 1:

(1)  When a court determines any question with respect to –

(a)the upbringing of a child; or

(b)the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

  • Child Support Act 1991 (CSA 1991) s 1:

(1) For the purposes of this Act, each parent of a qualifying child [ie of which they are both the natural parent, or an adopted child] is responsible for maintaining him.

  • Matrimonial Causes Act 1973 (‘MCA 1973’) s 25(1), and Civil Partnership Act 2004 (which for our purposes mirror one another, so reference will be made only to MCA 1973):

(1) It shall be the duty of the court in deciding whether to exercise its powers [to adjust family property (eg the parties home), award lump sum payment or maintenance (called periodical payments) and pension adjustment orders] and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

  • Children Act 1989 Schedule 1 (‘Sch 1’): provides money only for children, but not where parents are getting divorced or they were never married, but on similar principles to MCA 1973. Since CA 1989, by definition, deals with welfare of children the welfare-first rubric in MCA 1973 s 25(1) is not necessary.

 Exception: equity and a the single parent

  • Parents not married to each other: cohabitation law is not statutory and makes no specific provision for children. Capital of married couples can be adjusted under MCA 1973 (and this may include for a home for a child); but the same child, if his/her parents are unmarried, will depend on a scramble of laws (called ‘equity’) (‘equitable’) which may or may not leave him with a home: more likely yes, whilst the child is dependant, but often not once the last child has left home.

But, but, but: on a relationship breakdown the couple’s children will be the same children under each set of statutory provisions. So, why do we have different judges and the Child Support Agency for those same child(ren)? Why not one relationship breakdown file for all, and one judge to dispose of trial issues? ‘Why’ indeed.

One relationship breakdown – and one set of proceedings?

This article will look at (1) what is likely to happen now under the present procedural rules; (2) what could happen under the same rules to make relationship breakdown easier for children and their parents; and (3) – a bit of law reform dreaming: what should happen, so that the law and its practitioners can try to make an already bad situation as little worse as possible. This will be in Part 2 (to follow).

Broadly speaking the law relating to children is the same whether parents are married or not. CSA 1991 applies to a parent with care and a non-resident parent. CA 1989 Parts 1 and 2 (what family lawyers call ‘private law’: ie child arrangements) is concerned with parents and others with parental responsibility. And CA 1989 Sch 1 deals with finances as between parents (married or otherwise). MCA 1973, so far as it deals with finance for children, can only provide if their parents are married.

Child support

CSA 1991 skews the whole family finance set up. Mrs Thatcher felt that too many men were getting away with not paying for their children; and that lawyers had failed to fix sensible amounts to be paid and to enforce what was due (if not paid). ‘Something must be done’ she said; and it was – but what a mess….

The scheme is run by Department of Work and Pensions and is based on administrative, not family, law. Its enforcement is partially based on 1980s poll tax enforcement. And, truly wild to tell: the same parents can be involved in four first instance courts/tribunals; and that still does not allow for divorce and other cases in the Family Court. There is no way, as the law now stands, that DWP will permit their case (as they see it) to be argued alongside other family proceedings; or even in the same court. And most district judges are too frightened – because mostly ignorant on the subject – to take on the DWP and their lawyers (proof of this statement is available).

The law, family breakdown and child arrangements

Child arrangement proceedings (formerly custody and access, then residence and contact: Children Act 1989 Parts 1 and 2) are likely to be dealt with in an individual set of proceedings, and only exceptionally before the same judge on the same day.

Later a district judge – almost certainly a different judge – will deal with money. Maintenance cannot be dealt with on a contested basis by this judge (CSA has a monopoly on this), unless the parties agree.

Family Procedure Rules 2010 (‘FPR 2010’) – the rules which cover family proceedings – put nothing in the way of one court dealing with all issues concerning children (other than for child support under CSA 1991: CSA 1991 s 8(3)). There is no reason therefore why all children proceedings couldn’t be in one court and dealt with throughout by one judge. That judge would be in a position then to say that, for example, children proceedings should be separated off, perhaps be dealt with first. It all depends on the procedural needs of each family, with welfare issues (mostly of children: r 1.1(1): set out above) coming first.

Definition of issues: agree what you disagree

It truly is as simple as that. A family judge defines the issues (FPR 2010 r 1.4(2)(b)). It is a duty, says FPR 2010 r 1.4, yet the judges rarely define properly what is in issue. The one thing which parties to court proceedings must be able to agree is what they do not agree (eg about children or who should have the family home). These are then the structure of what the court is being asked to do (‘the issues list’). In many simpler cases, the list will probably fit on a side of A4.

If a dispute remains about arrangements for a child (where s/he is to live; when to be seen by the non-carer parent), then properly case managed the judge can consider listing all issues on one day before one judge; or on different days – but still, with the same judge (if available). Often it may be better to take money and children issues separately; but at least the court and the parties should consider whether one trial will work (and see FPR 2010 r 1.4(2)(j) (below)).

Overriding objective

The overriding objective is a ‘code’, a set of principles analogous (say) to a person’s manners or a ‘code of honour’. Manners guide the way you behave but are not rules in themselves. The overriding objective here is closely based on aspects the jurisprudence of European Convention 1950 Art 6(1) (which requires courts to provide a fair trial (dealing with a case justly: FPR 2010 r 1.1(2)). Ensuring parties are on an ‘equal footing’ is called ‘equality of arms’ in Convention jurisprudence; and so on.

Allotting a sensible share of ‘the court’s resources’ drives the one session-for- children-of-one-family-breakdown-and-their-money hearing demands a single judge for the same family, surely? The parties (a) they must help the court to further the overriding objective (FPR 2010 r 1.3) and (b) the court ‘must… actively’ manage cases. The judge must identify issues (as already mentioned) and, says FPR 2010 r 1.4(2)(j), s/he must deal ‘with as many cases as [the court is able to] on the same occasion’.

These are judge’s ‘duties’. They are like doing the washing up when it’s your turn, or not being late for work: they are things that the judge ‘must’ do. If I ruled the family law world, I’d make all family judges learn r 1.4(2) by heart; and the rule (italics refer to the two paragraphs mentioned in this article) says:

1.4 Court’s duty to manage cases

(1)  The court must further the overriding objective by actively managing cases.

(2)  Active case management includes –

(a)setting timetables or otherwise controlling the progress of the case;

(b)identifying at an early stage –

(i)the issues; and

(ii)who should be a party to the proceedings;

(c)deciding promptly –

(i)which issues need full investigation and hearing and which do not; and

(ii)the procedure to be followed in the case;

(d)deciding the order in which issues are to be resolved;

(e)controlling the use of expert evidence;

(f)encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(g)helping the parties to settle the whole or part of the case;

(h)encouraging the parties to co-operate with each other in the conduct of proceedings;

(i)considering whether the likely benefits of taking a particular step justify the cost of taking it;

(j)dealing with as many aspects of the case as it can on the same occasion;

(k)dealing with the case without the parties needing to attend at court;

(l)making use of technology; and

(m)giving directions to ensure that the case proceeds quickly and efficiently.

I’d test the judges on their knowledge at least once per month. Any judge who failed… Yes, well – I won’t ever rule the family law world…