Contempt: administration of justice, and private lives

Interference with administration of justice

 

The law of contempt applies in all fields of court proceedings: civil and criminal. It requires the alleged contemnor to be responsible in some way with the administration of justice. In this article it comes as civil contempt (moved over very quickly: ie disobedience of court orders); criminal contempt: holding the system up to ‘obloquy’ (see below); and publication of information in relation to private proceedings.

 

On 3 November 2016 the Divisional Court (Lord Thomas LCJ, Sir Thomas Etherington MR and Sales LJ) handed down a judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’: the EU withdrawal case). Since then there has been some raucous reporting of comment from newspapers whose editorial line supported EU withdrawal. This included the Daily Mail whose headline, the day after the judgment, described the judges as ‘Enemies of the people’.

 

A dictionary definition of contempt includes references to feelings that a person is worthless or not worthy of respect. Within that it is likely that most people would say the Daily Mail headline was contemptuous of one or more of the judges in Miller. At law more is needed.

 

‘Fair and temperate criticism is legitimate’

 

The law of contempt is based on preventing interference with the administration of justice. It was considered fully in Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 1974 where the House of Lords considered whether the proposed publication by the Sunday Times of their heavily disapproving views of the proposals put forward by Distillers (manufacturers of the drug thalidomide) for settlement of litigation on behalf of children effected by the drug.  Lord Reid defined the origins of the law of contempt as follows (at 294E):

 

The law on this subject is and must be founded entirely on public policy… and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.

 

He went on (at 296D) drawing attention to the need for balance between justice and freedom of speech: ‘There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations’.

 

Lord Simon spoke in a similar way of the balancing of rights in Attorney-General v Times (at 319H): that:

 

[It is not] sufficient to say that, under our constitution, freedom of discussion is itself a creature of the rule of law, and that the administration of justice must therefore be paramount in every situation of actual or potential conflict. Each is a genuine interest of society, and neither can be held to be universally paramount over the other;…

 

‘Fair and temperate criticism is legitimate’, said Lord Reid (at 297H). ‘Anything which goes beyond that may well involve contempt of court.’

 

Forms of contempt

 

So what does freedom of expression permit? Lord Morris (at 302A-C) summarised his view of contempt as against freedom of expression:

 

The phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits…. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest.

 

Lord Diplock (at 307H-308) explained the difference between ‘civil contempt’: the disobedience to a court order by one party to proceedings; and ‘criminal contempt’ (at 308C-D) is, he says:

 

… the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.

 

And (at 310G)it extends to:

 

….to conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law, by holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his ease before they have been determined by the court or the action has been otherwise disposed of in due course of law.

 

Contempt: public dissuasion from litigation

 

In Attorney-General v Times Lord Diplock distinguished between private pressure to discourage litigation (permissible) public ‘obloquy’ to discourage legal action (not permissible: ie criminal contempt). Lord Diplock pointed out that in Merchant of Venice it would have been permissible privately to discourage Shylock from insisting on his bond; but to do so publicly where ‘he was seeking to enforce in a court of competent jurisdiction legal rights to which he was entitled under the law as it existed at that time … would have been a contempt’. Lord Diplock continued (at 313E):

 

In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so. The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court, the latter is at least a technical contempt, and this whether or not the abuse is likely to have any effect upon the conduct of that particular litigation by the party publicly abused.

 

This disparagement of a litigant is what happened in Attorney-General v Hislop [1991] 1 QB 514. Two articles had been published in Private Eye about Sonia Sutcliffe (SS; wife of the ‘Yorkshire Ripper’). When the hearing of SS’s action was imminent, two further articles defaming her were published. After she had been awarded damages in the first action the Attorney-General issued committal proceedings. The judge considered that the articles did not cross the contempt line: there was no risk of prejudice to the jury. The Attorney-General appealed.

 

The Court of Appeal said there had been a ‘serious contempt’, which went ‘beyond fair and temperate criticism’ (at 527D and 528D). Its content was plainly intended to put pressure on SS to give up her litigation. Nicholls LJ (at 532C-D) echoed the words of Attorney-General v Times:

 

Part of the mischief of this particular type of contempt is the impact which publication of articles of this nature can be expected to have on other litigants. As Lord Reid said in Attorney-General v Times … (at 295): “Of course parties must be protected from scurrilous abuse: otherwise many litigants would fear to bring their cases to court.” Likewise Lord Diplock said, at p. 310: “If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy … potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established.”

 

Contempt: privacy of court proceedings

 

A third form of contempt was envisaged by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 as exceptions to the open justice principle (though in Scott the House very clearly rejected privacy – and therefore that contempt could arise for private proceedings – in that divorce case). Privacy may be directed by the court or required by court rules (eg Civil Procedure Rules 1998 r 39.2(3); Family Procedure Rules 2010 r 27.10). This includes proceedings in relation to children and individuals who lack capacity (Mental Capacity Act 2005; ‘protected parties’ as explained below). Viscount Haldane in Scott v Scott (at 437) said of these exceptions:

 

In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic.

 

The exceptions to the open justice principle where privacy may be ordered are reflected in CPR 1998 r 39.2(3) setting out when the open justice principle (all proceedings to be in open court: and see r 39.2(1)) may be overridden and the hearing may be in private (an emphasis on the ‘may’: the court still has a discretion). A hearing may be in private if:

 

(3)(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party; or…

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

 

This article is concerned primarily with children and protected parties (ie ‘a party, or an intended party, who lacks capacity to conduct the proceedings’: CPR 1998 r 21.1; FPR 2010 r 2.3). Prominence is given to them under Administration of Justice Act 1960 s 12(1) which – in negative terms – is (as relevant here) as follows:

 

12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a)where the proceedings –

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b)where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;…

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).

 

It is not necessarily a contempt to publish information as to proceedings in private, save in the excepted cases (including civil proceedings) in s 12(1); and even then it may not be contempt if it was not a contempt before s 12 was in force (Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370 per Lord Brandon at 420F): for example, if there is a defence in law such as that the publisher did not know of the of the existence of the proceedings (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA).

 

A third form of contempt

 

Concern for children and contempt come together in Re F (orse A) (a Minor) (Publication of Information) (above) in the Court of Appeal (Lord Denning MR, Scarman and Geoffrey Lane LJJ) heard Waite LJ (as he became) leading Lord Wilson (as he then was not) for the Official Solicitor; Leon Brittan represented Slough Daily Mail; and Sir Peter Rawlinson QC for the Daily Telegraph. The application was by the OS to commit ‘Dear Bill’ Deedes and the editor of the Slough Mail in relation to a ward of the court.

 

Lord Denning introduced the facts of the case as follows:

 

This is about a distressed father and mother. They have an errant daughter who has worried them greatly. Last year, 1975, when the daughter was only 15, and still at school, she got into the clutches of a man much older than herself. He was about 28. He was a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair. He was one of a “hippy” gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15. She thought that she was in love with him.

 

F’s parents made her a ward. An outcome of those proceedings was that the girl was provided with a home by the local authority; but they (with support from the Official Solicitor) wanted to allow her still to see the man. The parents were extremely unhappy and contacted the Telegraph. The journalist was told by the parents that the wardship order was only temporary. He contacted the Official Solicitor and was told the same.  The Telegraph published a story which was also picked up by the parents’ local paper.

 

Tudor Evans J found that there had been contempt. The Court of Appeal disagreed. They said that Administration of Justice Act 1960 s 12(1) was a codification of existing law. It must be treated as a clarification of the pre-existing law (as Scarman LJ (at 99) and Geoffrey Lane LJ (at 105) read s 12(4)). A contempt was only committed if the newspapers knew that their reports contained information relating to children proceedings (per Scarman LJ at 100), which – said the court – they did not.

 

The court’s view of the law in Re F was considered by Lord Bandon in Pickering v Liverpool Echo (above). P was convicted of manslaughter with sex offences and had been detained in a mental hospital. To secure release he must apply to a tribunal. He suspected that newspapers might publish information about his application; and he applied for an injunction to stop them. The judge rejected his application. The Court of Appeal by a majority made a reporting restriction order but gave the newspapers leave to appeal.

 

Lord Bridge (at 421D-422G) explained Re F and its assessment of AJA 1960 s 12 – and approved what Scarman LJ had said – as follows:

 

[The court] rejected the view that the effect of the exceptions in section 12(1) was to constitute the publication of information relating to proceedings in the excepted categories an absolute offence of contempt. Scarman LJ said, at 99: ‘I cannot read the words ‘of itself’ in subsection (1) as implying that in the five excepted cases contempt is necessarily committed if the court sits in private. The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law.’ I agree with this.

 

He then went on to look at the question of ‘material protected from publication’ (at 422A). On this subject, Lord Bridge refers to two statements. First Scarman LJ:

 

As I read the section, what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the ward, but not to the proceedings, there is no contempt: …

 

In support of this proposition Scarman LJ, in Re F, cited Re Martindale [1894] 3 Ch 193 where Ford Madox Ford (then ‘one Hueffer a young poet and novelist’: he changed his name after the 1914-1918 war) had married a ward. He told a journalist friend of it; and ‘allowed, I am sorry so say, an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings’. The contempt was not that the journalist’s paper had published the name or the fact of the bride being a ward, but that what was published would be understood as ‘what took place in my private room’ and what ‘the judge had decided’ (per North J).

 

Publication of ‘information in proceedings’

 

What may not be published? Lord Bridge quotes Geoffrey Lane LJ (at 105) in Re F, where he explained what was included as part of ‘information relating to proceedings’ in s 12(1):

 

‘Proceedings’ must include such matters as statements of evidence, reports, accounts of interviews and such like, which are prepared for use in court once the wardship proceedings have been properly set on foot. Thus in the instant case the reports of the Official Solicitor and the social worker were clearly part of the proceedings and were protected by section 12.

 

Publication of such documents (passing them to a journalist (as in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142) invites an application based on this breach of privacy contempt. In Re B (above) Munby J gave a summary of his view of the operation of AJA 1960 s 12(1) (at §[82]).

 

Others will decide whether any of the journalists responsible for disparaging comment should be brought back to court. In the private proceedings context, the extent to which documents can be released from (say) children proceedings, depends on the view of the court and on what can be proved against a contemnor.

A SIMPLE LAW FOR PRIVACY IN CHILDREN CASES

Where open justice is trumped by children privacy

JXMX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 should be required reading for every court dealing with children proceedings; and many other forms of family proceedings as well. In 36 unhurried paragraphs it explains the common law on when the open justice principle can be overridden (Roberts J took 177 paragraphs to do the same thing in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), Roberts J). The same common law and (as applicable) statute law which applies to all civil proceedings (though family proceedings rule-makers have introduced rules which impede the simple common law principles in a way which gives every impression of illegality: FPR 2010 r 29.10 and 29.11; and see https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ – my response to Sir James Munby P’s July consultation paper on what he calls ‘transparency’).

The background is that JXMX sustained severe birth injuries and sued the Trust responsible. She will always be a protected party, with people looking after her and her interests. Her claim was settled for a significant sum. The settlement went before Tugendhat J for approval, a hearing which is in open court. Her advisers asked for an anonymity order; and, for example, her mother had said that she was concerned that people might start looking to her for payments if the large sum awarded to her daughter was reported in the press. She was concerned about her and her daughter’s loss of privacy.

The judge was unconvinced. All of her daughter’s affairs would be looked after by a professional Deputy, and, he said, the mother’s fears were not objectively well founded.

The appeal

The Court of Appeal, in a judgment of the court, set out clear statements of principle in favour of open justice from cases such as Scott v Scott [1913] AC 417, and A v British Broadcasting Corporation [2014] UKSC 25. They referred to the summary of the common law position (now codified, largely, in CPR 1998 r 39.2). Children law, said Lord Reed in A, recognised that there may be many different cases in which the court must have regard to the need to do justice in a wider sense than merely reaching a just determination of the issue between the immediate parties. So, said the Court of Appeal, interests contrary to open justice may arise:

[14] Proceedings involving children and vulnerable adults will often call for a measure of privacy, not necessarily because of the inherent nature of the issues to which they give rise, but because such persons may suffer a distinct injustice if they are exposed to the publicity that may be generated if the proceedings are held in public. Moreover, a claimant who is, or will in due course grow up to be, a protected party may need protection from those who would seek to gain access to the funds that are intended to provide compensation for the injuries in respect of which they were awarded.

Family proceedings

One can entirely understand that those involved in any proceedings on family breakdown would want privacy; but why should they start (as FPR 2010 r 27.10 suggests they are entitled to do) in any different position than any other litigant Or as Jeremy Bentham would say, why should family courts judges be any less on trial than any other judge?

The correct approach on privacy, as ever, is to put the law first; and the law here is the common law ‘open justice principle’ (per Toulson LJ in Guardian Newspapers above; or as explained in MX); unless that openness should be restricted by order of the court (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593) or by statutory intervention – eg by contempt proceedings. As Lord Scarman explained in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

No one shall be punished for publishing….information 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. Parliament clearly had the general rule in mind when in 1960 it enacted that even the publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court save in specified exceptional cases: section 12 (1) of the Administration of Justice Act 1960….

The common law starts from the premise that anyone subject to it can do what they want, unless lawfully prohibited (hence the negative – ‘thou shalt not’ – approach of much parliamentary drafting (eg Administration of Justice Act 1960 s 12(1)). The default position in any civil proceedings is open justice. Exceptions – and there are sure to be many in family proceedings; and for protected parties generally – must be statutorily provided for or ordered by the court on a principled basis. That does not include in delegated legislation, especially legislation for which there are no obvious vires.

Many of the applicable ‘exceptions’ are summarised in CPR 1998 rr 31.22 and 39.2. Adopt those rules into FPR 2010 and – in procedural law, at least – the problem would be solved.

And there it is: a family lawyer (me) who, yet again, protests too much on this subject; for I know Sir James Munby P is still tying himself in knots over it. The law is very simple; and it is clearly as can be set out in JXMX v Dartford for any children case (subject to the provisions also of Administration of Justice Act 1960 s 12).

OPTIONS FOR FUNDING FAMILY PROCEEDINGS

Buttressing the right to a fair trial

Equality of arms is intended to be a buttress of the right to a fair trial (European Convention 1950 Art 6). In JG v Lord Chancellor and ors [2014] EWCA Civ 656 http://www.bailii.org/ew/cases/EWCA/Civ/2014/656.html Black LJ commented on the point by reference to Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601. There may be no obligation under European Convention 1950 to make legal aid available for all civil disputes, but (had said the European Court):

[45] … [the Convention] is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.

Access to the court must include the ability to see the case through to a ‘determination’. Muscat (at para 46) breaks down the applicant’s entitlement to legal aid; but unless you are up there in the sights of a Muscat type case as a litigant – ie that you need legal aid to secure effective access to the court – you won’t have equality unless you can pay for the case yourself, or you have legal aid. The past six months has tested such inequality in family litigation, in cases where legal aid would have been available (subject to the individual’s means) pre-2013; but where legal aid is now denied because of changes which are working their way through since introduction of Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) in April 2013.

Judges: attempts to blow the Lord Chancellor’s legal aid house down

Judges can huff and they can puff; but their job is to judge, not to play legal aid politics. And, it seems, there is little they can do to blow the Lord Chancellor’s LASPOA house down (save where application is made successfully for judicial review: that has been happening incrementally; it is a subject for another day; and, for now, it is fair to observe that family lawyers are remarkably complicit with the Legal Aid Agency (LAA) in permitting its harsh regime to consume their client’s cases).

Sir James Munby P notably has huffed; and he has threatened to make the Ministry of Justice pay by a door other than legal aid. But, being a politician the Lord Chancellor craves attention. The more the judges huff and puff, yet can do nothing, the more – I suspect – he enjoys it. He knew what he was doing when he strangled the private law family proceedings legal aid budget. If the effects are working, then all the more political credit to him. Sir James’s harrumphing has the opposite effect.

Court inroads, and court harrumphing

There have been a series of inroads on the scheme in the Administrative Court in judicial review. That works for the particular case – unless the LAA go off and re-make a decision with the original outcome, but made correctly the second time. However, unless a general principle is involved the benefit is narrow and short-lived (Black LJ’s ratio for her decision in JG – as she herself accepted – was three lines in a 132 paragraph judgment). Most are but a tiny skirmish on the wide front of the battle against the Lord Chancellor.

That said, these cases are not what this note is about. It concerns the recent harrumphs of Family Division judges. Have they helped parties to find another way to funded legal representation? (One thing that can be fairly certain is the inefficacy of the lawyer’s representative bodies: what are Law Society Family Law Committee, FLBA and Resolution doing – I genuinely would like to know, but my impression is: very little).

Three recent cases have highlighted the problem; and – thus far at least – have also highlighted the powerlessness of judges. Perhaps this is right: judges judge. Others (perhaps including judges, but in another capacity) join in the trench warfare in which radical lawyers are involved, on behalf of their clients, with the Ministry of Justice. These cases include:

• Q v Q (No 2) [2014] EWFC 31, Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html
• Re D (A Child) [2014] EWFC 39 (31 October 2014), Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/39.html ; preceded by A Father v SBC and ors [2014] EWFC 6 (23 May 2014) Baker J and Re D (A Child) [2014] EWFC B77 (9 June 2014) HHJ Marshall.
• R v R (Family Court: Procedural Fairness) [2014] EWFC 48 (11 December 2014), Peter Jackson J http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html .

I have considered some of these cases more fully elsewhere (‘State funding for family proceedings after Q v Q (Private law: public funding): Part 1’ Family Law [2014] October http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law [2014] November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; and ‘State funding for family proceedings: part 3: sources of family proceedings funding’ Family Law [2014] December http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub ).

This note looks at possible options there may be for parties to be funded (save from their own resources) outside the legal aid scheme. To what extent can family lawyers press for this and for other possible forms of public funding for their clients?

State funding after Q v Q (August 2014)

In early August 2014 Sir James Munby P considered the extent to which children proceedings demanded that particular litigation funding and other expenses might be paid for by the state. Without deciding anything, nor with any other than scant recitation of authority, Sir James raised questions as to the extent to which the court has power to order funding from a public body other than Legal Aid Agency. For the individuals concerned, and for their advisers, how to apply for such funding remains a largely unresolved question; even if, since August 2014, Sir James has found out how such funding might be available.

Sir James’s discussion ([46]-[49], [54]-[57] and [77]-[79] in Q v Q (No 2)) for funding from HM Courts and Tribunal Service (in essence the same budget from which legal aid is drawn: ie Ministry of Justice) starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court (Airey v Ireland (1979) 2 EHHR 533) (para [48]; Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601; JG v Lord Chancellor and ors (above)).

It is the court which decides whether appointment of an expert is necessary (Children and Families Act 2014 s 13(6)); and if so maybe it is for the court to bear the cost (paras [56] and [57]). Similarly, if legal representation is needed for the court to discharge its duty under Matrimonial and Family Proceedings Act 1984 s 31G(6), then appropriate representation must – perhaps – be provided at the expense of HMCTS (paras [69], [79]). Three possibilities arise from Sir James’s comments:

(1) Direct application for HMCTs funding

Sir James’s comments suggest that – subject to means and merit – then application should be made direct to HMCTS (would the office of the family court where the case is proceedings be able to help with an apt address?). The following pre-conditions to grant suggest themselves:

(1) Merit would probably be dictated by the terms of case management directions; and with such direction an applicant would then have to show
(2) The applicant has no alternative source of private funding;
(3) That legal aid was not available under the LASPOA 2012 scheme; and
(4) That the applicant’s means – perhaps by reference to the Ministry of Justice approved court fees remission scheme (Family Proceedings Fees Order 2008 (as extensively amended) Schedule 2) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused, judicial review of their decision would – in principle, at least – lie to the Administrative Court. And do Sir James’s obiter comments, alongside the existing legal aid scheme create any form of legitimate expectation amongst potential applicant that funding will be provided by HMCTS? A legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision; and it must be open to doubt that Sir James is in such a position. Developments from Sir James’s comments are awaited.

(2) Assessors

The role of assessors in family proceedings is relatively overlooked by court (save in the costs jurisdiction). Senior Courts Act 1981 s 70 (applicable in county courts per County Courts Act 1984 s 63 and in the family court: see MFPA 1984 s 31E) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 explains how this can be done. The assessor could be a person whose opinion – including taking part in decision-making – might assist the court. Their role in many ways would be similar to that of a jointly funded expert. The issue of costs remains (s 70(2) above); but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds (ie HMCTS). HHJ Marshall left the parties following her rambling attempt at Re D (as it seems to me) crying out for appointment of an independent social work assessor (see para [87]-[89]); but many children lawyers might regard that a little radical.

(3) Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162, at the request of Roderic Wood J the Attorney-General (‘A-G’) arranged for an advocate to the court (‘AtoC’) to be appointed to deal with a father’s cross-examination of a mother abused by him. The role of the AtoC was limited to cross-examination of a vulnerable witness (the mother); but not as representative of the father. The assistance was for the court alone. The instruction of the AtoC, by the A-G, was dealt with under the Attorney-General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869: this memo remains basis on which the A-G deals with requests for appointment of an advocate to the court).

The Memorandum reveals that a request comes to the A-G from the court. The appointment is a matter for the A-G (paras 3-8). The Memorandum stresses that an advocate to the court ‘represents no one’ (para 4): his/her role is limited to that professionally adopted by him/her (ie not eg on instructions from any party). Request is made by the court to the A-G (para 9). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).

In Q v Q (No 2) Sir James considered how this assistance to the court would be capable of assisting the court (judge or magistrates) where MFPA 1984 s 31G(6) applies. This provision is as follows:

(6)Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—
(a)ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b)put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

To what extent will courts be able to invite the A-G to instruct an advocate, where a witness needs protection from cross-examination by an abuser (alleged or otherwise). The court can then, through the AtoC, ‘cause to be put’ questions to the abused person? It must be hoped that this is a question high on the agenda of the Vulnerable Witnesses Working Group.

Committal applications

In Re Ramet (application for the committal to prison) [2014] EWHC 56 (Fam) Sir James Munby P said of legal aid for committal applications:

[32] I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:
“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –…
(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”
The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.
[33] Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB).

Committal applications in European Convention 1950 jurisprudence are in effect criminal proceedings was explained by the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698 (and see there references to Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, at 677 paras 80 and 81). Application for funding is to the court by the individual whose committal is sought. Whether this is to be on the day or by separate FPR 2010 Part 18 or Part 19 application remains to be clarified by Family Procedure Rules Committee.

Lessons from administrative law proceedings

(1) Protected costs orders

The Administrative Court has developed a jurisdiction which protects an applicant for judicial review from an adverse costs order if their case is in the public interest and the applicant expects no personal gain (R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600). In the unlikely event that a parent is threatened with a costs application in children proceedings, and where such proceedings are for the benefit of a child – says the parent – then a form of protective costs order (on Corner House principles) in children proceedings is not inconceivable. Indeed such an order was touched upon by Sir James in Re D.

(2) Unfunded parties to care proceedings

In care proceedings, grand-parents, or other family carers, share thin gruel when it comes to funding of legal representation; though the court and local authority may need to rely on such family members to care for the child concerned, perhaps long-term. As was explained in Re T (Costs; Care Proceedings; Serious Allegations Not Proved) [2012] UKSC 36 [2013] 1 FLR 133, there is no guarantee that they can expect funding for representation from a local authority, even where they are caring for a child and where their means takes them outside legal aid.

And yet, can they claim any ‘legitimate’ expectation to expect any such funding? Almost certainly not; but the question bears asking. The subject is derived almost entirely from administrative law (see eg references to de Smith above; and Judicial Review Proceedings: a practitioner’s guide Jonathan Manning, Legal Action Group (2013) at 6.266 etseq).

Clarity in law: a conclusion

Lord Bingham’s first principle of the Rule of Law (2006 David Williams lecture: http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) is as follows:

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.

Making family law clear and, as far as possible, ‘intelligible’ to the averagely intelligent layman – who will not ‘usually’ have legal advice, as Lord Bingham expected – is the first challenge for reformers if funding is to remain as piece-meal as outlined in this series. And doing that critically – is this law clear to the averagely intelligent layman? – must be a part of the landscape the lawyer tries to discern through his or her Muscat v Malta spectacles.

Those spectacles are the key to LASPOA s 10 funding which so many family lawyers have so far flunked (see ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law [2014] November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub).

RIGHT TO PUBLISH WARDSHIP CASES: HOW FAR?

Publicity: further scope for a criminal charge

 

Journalists may have been allowed by Sir James Munby, President of the Family Division, into the High Court in the recent, well publicised, wardship hearing before Baker J, concerning parents who removed their child – ‘Andrew’ let us say – from a Hampshire hospital against medical advice. But does that give them full permission – and any right – to report on the proceedings? If they or anyone else publishes information about the proceedings to what extent do they risk a criminal offence?

 

Rights of all concerned – the child (whose welfare is paramount), the press, the parents and other members of Andrew’s family – must all be balanced before a decision is made by the court to ‘open’ the proceedings (see explanation in the context of the House of Lords case of Re S below); and to permit the overriding of the criminal consequences of Children Act 1989 (‘CA’) s 97(6). The blushes (if any) of the police, of the hospital, of the local authority (who, whether lawfully or not, applied for the wardship order – see http://wp.me/4jaDx ) or of the family justice system are not part of that rights balance.

 

To my knowledge, no order nor any judgement of Sir James has been published (there is nothing on the BAILII website either for his or the 29 August judgements); so we do not know how he conducted the rights balance. Why, for example, did he think that publicity would serve the welfare of the ward, Andrew? How did he deal with Andrew’s welfare requirements under Children Act 1989 (‘CA 1989’) s 97 (see below).

 

Permitting anyone to attend court is one thing. What is published concerning the case – eg in the press or other media – is altogether another. Judges like Sir James, have been at pains in the past (see as Munby J eg Princess Diana’s brother’s case: Spencer v Spencer [2009] EWHC 1529 (Fam), Munby J) to stress that it is not for judge’s to advise journalists what they can publish; and it will not be Sir James – or it should not be – who deals with any criminal (CA 97(6)) or contempt (Administration of Justice Act 1960 s 12) proceedings by anyone affected by the publicity which there has been.

 

What can be published, even though the press etc is let in?

 

So the court was ‘open’ (we all assume; though we have yet to learn the terms), but does that let those present – or any of the rest of us who have information about the case – merely publish whatever and as we see fit? I do not know what newspaper’s advice is to their journalists. Certain it is, alongside this, that the family law system has got itself into a complicated – needlessly, I should say – muddle over publicity for family proceedings (see eg http://wp.me/p4jaDx-68 ). Andrew’s case does little to help that.

 

Almost exactly a year ago Sir James Munby P, in a case reported as Re J (A Child) [2013] EWHC 2694 (Fam) (http://www.bailii.org/ew/cases/EWHC/Fam/2013/2694.html) defended the right of individuals aggrieved by the family courts process to post their grievances on the internet, even when expressed by them in ‘vigorous, trenchant or outspoken terms’. The President set his colours to a mast he has powerfully – and rightly, in the appropriate context – erected: ‘there is a pressing need for more transparency, indeed for much more transparency, in the family justice system’.

 

In Re J he set out the legislative restrictions on publicity a then goes on to explain the importance to the family justice system that it should receive publicity. He starts by pointing out the ‘automatic constraints’ on publicity.

 

CA 1989 s 97 (prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2006] 1 FLR 11)). The prohibition in s 97 relates to any children proceedings and prevents publication which will identify the child or certain details about him (s 97(2)). It can only be overridden by specific order of the court that information can be published which identifies the child, and if the court has found ‘that the welfare of the child [concerned] requires’ publicity (s 97(4)). We await hearing what Sir James said on this point (which is in line with his European Convention 1950 duties under Re S). Section 97(6) creates a criminal offence if it is breached.

 

The more long-lasting and over-arching AJA 1960 s 12 provides as follows:

 

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a)where the proceedings –

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

 

The section relates to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children, wardship etc. It is still the case that it may be contempt to publish information from such proceedings: this is the effect of the series of negatives by which the section is drafted. The person who wishes to publish must make up his or her own mind.

 

Relaxing the restraints on publicity

 

In Re J Sir James says simply (at para [22]) that ‘the court has power both to relax and to add to the “automatic [ie statutory] restraints”’. He does not state his authority in law for this. To ‘relax’ the restraints, as Sir James explains, the court must conduct a balancing exercise within European Convention 1950 terms, as explained by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication) [2004] UKHL 47 (at para [17]). It is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect, said Lord Steyn.

 

So, said Sir James, the interests of the child must be a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and the right of the press and a parent or others who might want (as in Re J) to publicise information (Art 10). Was this balancing exercise conducted by Sir James when he made his order in Andrew’s case, and if so in what terms? We do not yet know.

 

In conducting that balancing exercise, the primacy of the best interests of the child must be considered. This was further explained in the Supreme Court in (not considered by Sir James) H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 where Lord Kerr said:

 

[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. 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….

[145] ….no factor must be given greater weight than the interests of the child.

 

Like ZH, H(H) related to children in immigration proceedings (ie not involved with publicity), but the principles in relation to the interests of children are parallel.

 

Court promoting publicity

 

The court was not entitled, in this jurisdiction, said Sir James in Re J, to seek to prevent dissemination. But what – as in Andrew’s case – is the court’s role in encouraging ‘dissemination’ of information (if this was any intention of Sir James: his order and judgement will show)? Where is the primacy of Andrew’s interest in dissemination (if that was the aim), and of justification for interference with Andrew’s right to respect for his family life (Article 8)? Who (if anyone) applied for the relaxation of publicity, and on what terms?

 

Word from Sir James is awaited. In the meantime if I was thinking of publishing anything about Andrew I would look very carefully at CA 1989 s 97 and AJA s 12(1) see if overriding those statutory provisions is covered by Sir James’s order. The police have been involved in this case too much. Their further involvement under Children Act 1989 s 97(6) must be avoided.

CHILD ABUSE: INQUIRY AND REFORM

 Listening to children and other protected individuals: a family court response

 

In parallel with all the press and political furore over setting up a child sex abuse inquiry and the Rotherham cover-up, the Judicial and Tribunals Office have issued a consultation paper from the Children and Vulnerable Witness Working Group entitled an Interim Report and dated 31 July 2014 (http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/). The group seems to be part of the personal fiefdom of Sir James Munby P and was set up by him following one of his musings (12th View from the President’s Chambers) of 4 June 2014.

 

The working group (‘WG’) has met once, and seeks responses to its ‘proposals and initial recommendations’ by 3 October 2014. It proposes a rule change – yes, one procedural rule. Yet this is a much larger subject than one rule will resolve; and part of a massive political, legal and sociological subject demanding co-ordinated thinking between criminal, civil and administrative tribunals alongside family proceedings. It is only the civil and family courts aspect of it which the WG is considering. Ultimately the whole topic needs co-ordination with other departments dealing with protected individuals; and with any child abuse inquiry which may be set up. It may be an incremental process; but it needs some clarity of intent, to be based on some form of policy or philosophy.

 

Proposals and initial recommendations

 

The working group has put forward a number of ‘proposals and initial recommendations’. In summary these are:

 

  • There should be a new ‘mandatory [when are rules voluntary?] rule’ for ‘children and vulnerable witnesses and parties’ with practice direction and guidance to be ‘inserted’ in FPR 2010 as soon as possible (13(ii) and (iv)). This is to be drafted by the WG with the Family Justice Council (‘FJC’) (13(xvi)) (not with Family Procedure Rules Committee, which was appointed by Parliament to do this job).
  • Paras 13(vii)-(x) require advocates and litigants in person to identify ‘vulnerable’ parties etc
  • A practice direction for FJC guidance (it is not clear what constitutional role the WG envisages for FJC) to judges is recommended (13(xi); and the status of judicial discussions which children should be clarified (13(xii)) says the group.
  • Special measure should be made for vulnerable witnesses; and ‘the rule’ should contain details as set out in paras 13(xiii) and (xiv).
  • There should be training for judges and advocates (13(xvii)-(xix)) and ‘as part of the (sic) tool-kit’ (what ‘tool-kit’; and whatever that term is intended to mean in context).

 

This is the limit of what is proposed by the group. I now suggest a number of other headings which should be addressed by the WG, and only – in this context – to vulnerable individuals involved in civil and family proceedings. The wider issues thrown up by modern concerns about the treatment of abused individuals in a variety of contexts – listening to children and others concerned (at whatever stage in their lives), their treatment by public authorities (children’s departments, police, schools and courts), involvement of victims in court prosecutions, child welfare informants etc – needs further, detailed – and urgent – consideration.

 

Given a canvas limited to court proceedings – and mostly to civil and family proceedings at that – to what should immediate reforms be addressed? At this stage notes only follow. It is a subject which needs urgently to be developed alongside all the other issues which public authority neglect and political inertia are throwing up in relation to abused children and their treatment by public authorities.

 

Protected individuals in civil proceedings

 

First the title is too restricted. The group of individuals covered by the reforms is much wider. Parties, witnesses and all others involved in civil proceedings who might fairly be regarded as vulnerable – I would propose ‘in need of’, or ‘deserving,’ ‘protected status’ – should be the main part of the reforms. I have therefore proposed the slightly clunky working title of ‘protected individuals’: it gets away from ‘witness’ and ‘party’ which implies only court process. It is important to be clear that the information which is provided by a protected individual may not necessarily be for use in court proceedings.

 

The reforms must consider the special position of individuals (who may later become witnesses) who require protection in other circumstances: for example, because of their relationship with one of the parties (eg parent or child in cases of abuse by a party), because of their capacity (Mental Capacity Act 2005) or because they are child welfare informers (as with the case of X in Re A (A Child) [2012] UKSC 60 and later Re J (A Child) [2014] EWCA Civ 875).

 

Information from protected individuals

 

To what information – to use a neutral term – is this consultation addressed? What forms of information are involved; from whom that information will come; how may that information be employed; and by whom and how in court proceedings? Information which is collected from protected individuals, or where they give evidence in court and are entitled to protection, will include:

 

  • Information which vulnerable individuals (including children) may wish to give to children’s department social workers, schools, police etc), quite separate from court proceedings (at this stage)
  • Information and views which children who are the subject to proceedings may want to provide to the court: eg talking to the judge
  • Evidence which children as parties wish to give to the court
  • Protection for ‘vulnerable’ parties (eg parents and children who allege abuse by a party, where that party may have a right to cross-examine them)

 

Protection for whom?

 

Court proceedings which might involve a protected individual in any conceivable role – party, witness, subject (and talking to the judge) – include:

 

  • Children who take their own CA 1989 Part 2 proceedings and in their own right (with permission from the court as appropriate)
  • Children proceedings where the child is the subject of the case (ie the case is about the child and his/her family): either because parents are seeking an order in respect of the child (Children Act 1989 Part 2 (‘child arrangements’) or Part 4 and 5 (care etc)
  • Women (it will almost invariably be women) who have been abused (or allegedly abused) by a partner or other individual involved in the proceedings
  • Children who are accommodated by a local authority (CA 1989 Part 3) and may be involved in eg judicial review proceedings in relation to their care
  • Children who may be called as a witness in proceedings
  • A child or adult in any civil (including family) proceedings lacks capacity (Mental Capacity Act 2005)
  • A protected individual (as with X in Re J (A Child) [2014] EWCA Civ 875) is required to give evidence in any of the above proceedings and to be cross-examined or to give evidence in front of an alleged abuser

 

Protected individuals: context of their information and evidence

 

Extensive procedural changes are needed, and more understanding of the variety of facets which the question of protected parties’ evidence presents. This needs at least a review and a clear definition of the primary law and the court proceedings to which procedural changes might apply. The involvement of protected parties will span their first involvement either with a public authority; or with the courts where, as the subject of private proceedings, they may wish to – or be asked to – give their views as children of age and understanding.

 

As much flexibility as possible needs to be built into the system, so that where there is evidence it must be available to the court – even though not, in purist terms by a means which accords with every rule of procedural fairness (eg hearsay rules may need to be overridden, opportunities for cross examination reduced or constructed so that the court deals with appropriate questions from a party). A purist approach to the requirements of a fair trial may need to be sacrificed to child welfare.

 

This will need much more than a single ‘rule’. The role of obtaining child information for a court process needs well developed rules; the position of a judge talking to a child who wants to talk to the court needs a clear structure; and the special status of child welfare informers cries out for proper definition. Some of this may need primary legislation (the Children and Families Act 2014 was such a damp squib for family court reformers).

 

Child protection inquiry and reform

 

And this – the position of protected individuals and their evidence – is only a small part the law reform called for in this area. What happened in Rotherham, and in other parts of society, in the abuse of children and young women; what is happening with state interference with parental ties (ie is adoption really still necessary?); how children and other witnesses should be heard in the criminal courts; and how should children be heard and listened to by the courts: all this needs to be linked, but not delayed, in a process of child protection inquiry and reform.

CONSULTATIONS IN PROGRESS PER PRESIDENT’S 13TH FENESTRAL MUSING

Family procedure: consultation under way

In his short period in office Sir James Munby P has made reform of the family court system a distinctly personal affair. Following Sir James’s 13th fenestral musing (13th View from the President’s Chambers: The process of reform: an update http://www.familylaw.co.uk/news_and_comment/13th-view-from-the-president-s-chambers-the-process-of-reform-an-update#.U_BvDfmSwmF ) there are probably as many as five (perhaps more) consultations under way:

• ‘Transparency – The Next Steps: A Consultation Paper issued by the President of the Family Division on 15 August 2014’ see eg http://www.familylaw.co.uk/news_and_comment/transparency-the-next-steps-a-consultation-paper-issued-by-the-president-of-the-family-division-on-15-august-2014?utm_source=Familylaw.co.uk&utm_medium=Twitter#.U_BeuPmSwmE
• Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ http://www.familylaw.co.uk/news_and_comment/interim-report-of-the-children-and-vulnerable-witnesses-working-group-31-july-2014#.U_BomfmSwmE
• Draft standard orders – for a compendium of these see http://www.familylaw.co.uk/news_and_comment/family-court-draft-standard-orders#.U_BrnfmSwmE
• As ‘Report of the Financial Remedies Working Group – 31 July 2014’ http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF
• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

There are also other straws in the Presidential wind as seen from his window, including:

• Expert evidence after Children and Families Act 2014 s 13
• Legal aid after Q v Q (No 2) [2014] EWFC 31: ‘what is to be done?’ says the President.
• Divorce; and its separation from the family procedural system

At this stage I can only urge caution at the speed with which the results of these consultations are pursued; for, as with a car which is driven too fast, speed can cause injury – in this case, to bring the metaphor back to family courts, to children and others who cannot protect themselves against the President’s ardour. Momentum must surely be preserved; but that is not the same as haste. Reflection is important. Ill-considered haste breeds mistakes. Not only will bad reform decisions be made; but then children and other vulnerable individuals – who deserve protection in the family court system – may be hurt.

Protected witnesses: breadth of reform

The initiative which most affects the welfare of children in the above list, I would suggest, is that on what is called ‘vulnerable witnesses’. The working group, it seems with Sir James’s encouragement, wants to produce one rule change to cover this subject – yes, only one, they say.

If ‘vulnerable witnesses’ – I should prefer the wider concept of ‘protected individuals’ – are to be given the rights and help they need in a system of fairness for families (not only for children) a number of the other subjects cross over into reforms. Such subjects would include: the rights/demands of litigants in person (see eg H v L and R [2006] EWHC 3099 (Fam) and the President’s own Q v Q (No 2) [2014] EWFC 31); and confidentiality issues which arise from the transparency consultation paper. Is the working group speaking of ‘vulnerable witnesses’ only; or do they not, in reality, mean a much wider group? Do they not mean parties and witnesses – two quite different procedural components – who may in fact be ‘vulnerable’? Do they mean children who want to talk to the judge dealing with their case, who are not ‘vulnerable’ at all: they just want to be heard? Do they – or should they? – mean the vulnerable child welfare informer like the unquestionably ‘vulnerable’ X in Re A (A Child) [2012] UKSC 60?

These questions – and a variety of others – raise issues much wider than the working group seem so far to have considered at their one meeting (from which they have already produced ‘proposals and initial recommendations’: how open is the door on this ‘consultation’?). Rule changes – if of family proceedings only (but why not do the job properly and cover all civil proceedings?) – will be required to Parts 4, 16, 21 and 22 (better still one pervasive FPR 2010 Part). Substantive law changes may be needed – eg a definition of ‘protected individuals’; the position of litigants in person; perhaps a role for advocates to the court and rights for the child welfare informant – which were overlooked in the rush to get the meagre provisions of Children and Families Act 2014 part 2 onto the statute book.

And yes, much needs to be done on legal aid – help for funding of family proceedings. The President asks ‘What is to be done’? He or his office, I respectfully suggest, could start by reading some thoughts from this author at ‘Possibilities for state funding after Q v Q’ – http://wp.me/4jaDx and ‘State funding family cases after Q v Q; Re B; Re C [2014] EWFC 31’ – http://www.familylaw.co.uk/news_and_comment/state-funding-family-cases-after-q-v-q-re-b-re-c-2014-ewfc-31#.U_B14_mSwmE .

POSSIBILITIES FOR STATE FUNDING FAMILY CASES AFTER Q v Q (No 2)

Funding family proceedings

In Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P considered, amongst other things, the extent to which certain family litigation seemed to him to demand that particular litigation expenses be paid for by state funding (and see http://wp.me/4jaDx ). An earlier hearing in Q is reported as Q v Q [2014] EWFC 7 (and see http://wp.me/p4jaDx-5J for comment on complexity of family proceedings, legal aid and the earlier Q v Q). This raises questions as to whether the court has power to order funding from another public body (eg Ministry of Justice which is responsible for HM Courts and Tribunal Service (HMCTS) and Legal Aid Agency (‘LAA’)): and if so how individuals might be entitled to such funding apply for it.

If the court or any other agency has no power to arrange funding, are any indirect powers available to the court to enable a case to be funded? For example, in a case considered by Sir James (H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162) the judge, Roderic Wood J, was able to ask the Attorney-General to instruct an advocate to cross-examine (in place of an alleged sex offender) the young woman witness who accused him of abuse.

Funding or costs; and of what

In any consideration of legal aid and costs the following need to be distinguished:

(1) Funding and costs (and see http://wp.me/4jaDx ) – Funding is what must be found to pay for a case (often in advance). Costs is what a party may be ordered to pay to another party at the end of the case (governed by Senior Courts Act 1981 s 51).

(2) Expenses and lawyers remuneration – The funding aspects of the cost of a case contains two components: (a) payment for legal representation (income for lawyers, also called ‘remuneration’: eg Civil Legal Aid (Remunerations) Regulations 2013) and (b) payment of the expenses in the case (eg court fees, witness expenses, expert’s fees, assessment of parents etc).

Legal aid concerns the funding of proceedings; and mostly (when granted) covers both expenses and remuneration for lawyers.

Recent case law

Recent Court of Appeal and High Court judge judgements resolve themselves into two main categories:

(1) Those where the issue before the court on judicial review was the lawfulness of a LAA decision, or failure to decide:
• R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin), Collins J (26 April 2013) – LAA decision to limit expenditure on assessment quashed
• M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin), Coulson J (2 May 2014) – LAA decision on merits criteria unlawfully applied (case of information disclosure to CPS) remitted for reconsideration
• JG v Lord Chancellor and ors [2014] EWCA Civ 656 (21 May 2014) – LAA decision not to fund expert’s fee declared unlawful
• Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin) (13 June 2014), Collins J (decisions to refuse (in immigration cases) quashed
• R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (15 July 2014), Divisional Court consisting of Moses LJ, Collins, Jay JJ) – residence test in 2014 amendment Order illegal

(2) Those where judges have made comment on the non-availability of legal aid funding, but where their comments are obiter and not decisive of any issue before the court:

• Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P
• Kinderis v Kineriene [2013] EWHC 4139 (Fam), Holman J
• Q v Q [2014] EWFC 7, Sir James Munby P
• Re AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWHC 2758 (Fam), HHJ Bellamy sitting as a High Court Judge
• Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P

If the above are representative of the present position of the case law in relation to legal aid then the decisions made by the courts relate only (and this is probably all that they can do) to reversing LAA decisions, or otherwise sending back LAA decision-maker’s decisions to them for reconsideration. The exception to this is ota PLP, which is known to be under appeal.

By contrast the decisions under (2) above (and a lot of the comment in the cases in (1)) represent the views of judges (mostly supportive of a legal aid scheme); but it does not change the underlying statute law.

Funding of the cases in Q v Q (No 2)

Q v Q (No 2) is in the second group of cases. The matter which was of concern to the President was whether justice could be done in any of three cases if certain legal expenses and remuneration for one or more of three fathers (‘F’) was not covered by legal aid. In Q v Q the father is a convicted rapist and speaks no English; F in Re B is alleged by the mother to have been raped by him, which he denies; and F in Re C awaits trial (as at 6 August 2014) on charges – denied by him – of rape of the mother. Sir James was asked to make case management decisions on the case (the issue before the court); and in the course of so doing, he made a variety of comments on funding positions of the respective fathers. These included that the state should (could?) be required to fund aspects of the case. The purpose of this article is to seek to identify to what extent and how this can be done. In various ways legal aid had been limited or denied; but the issue of any LAA decisions was not before Sir James on the day of the case management hearing.

Public funding outside the legal aid scheme

The grant of funding by the tax-payer, in general terms and subject to points considered below, is a matter for statute law alone, starting from Legal Aid Act 1949. It is not open to the common law to make provision in advance for funding of litigation (save in the case of costs allowances in certain family proceedings). There is very little scope, in any event, for funding of private cases by another party to proceedings. Indeed one of the few statutory provisions for other party funding is provided for in LASPOA 2012 ss 49-51 (by amendment to Matrimonial Causes Act 1973). These provisions are part of LASPOA 2012 Part 2, which do make certain provision for private funding of cases (eg success fees and damages based agreements for costs); but there is no statutory provision for private or public funding by courts (beyond Matrimonial Causes Act 1973 s 22ZA (legal services orders)) in Part 2.

Sir James’s discussion (starting at para 46 in Q v Q (No 2)) for court awarded public funding from HMCTS starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court; and in the case of a litigants in person whether this is achievable without legal assistance (Airey v Ireland (1979) 2 EHHR 533) (para 48). It is the court which decides whether appointment of an expert is necessary (CFA 2014 s 13(6)); and if their attendance at court is required then it may be for the court to bear the cost (paras 56 and 57). Similarly, if legal representation is needed for the court to discharge its duty under MFPA s 31G(6), then appropriate representation must be provided at the expense of HMCTS (paras 69, 79).

If this is to done then tax-payer’s money must be found. Judges have no budget of their own. And there is a mass of statutory material (LASPOA 2012, delegated legislation and ministerial guidance) providing for such public funding as the present Government are prepared to allow. (Such legal aid as there is and the extent to which LASPOA 2012 s 10 (exceptional case determinations) applies is for separate consideration.) Against this back-ground it is not obvious how, in the absence of enforceable common law provision, funding by HMCTS is to be achieved.

Three indirect possibilities suggest themselves and, subject to the need for much more research, are put forward here:

(1) Application direct to HMCTs for funding

The logic of Sir James’s judgement is that if certain conditions as to means, merit and lack of alternative funding (private or legal aid) are met, then application can be made direct to HMCTS, perhaps by reference to the family court office in which the case is proceeding.

On Sir James’s suggested approach, merit would probably be dictated by the terms of case management directions. With those directions the applicant would then have to show (a) that s/he had no source of private funding; (b) that legal aid was not available; (c) that the judge had directed assistance and (d) that his/her means – perhaps by reference to a legal aid means determination (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused judicial review of their decision would lie (as against LAA but with no statutory back-bone for the applicant) to the Administrative Court.

An inevitable question which then arises is: does Q v Q (No 2) and Sir James’s obiter comments, alongside the existing scheme – however that scheme may be perceived by judges – create any form of legitimate expectation that funding will be provided by HMCTS? This area requires much further research. The President of the Family Division has an administrative function; but in that function does not lie the spending of taxpayer’s money. It is unlikely that, constitutionally, he can be said to be in a position legitimately to raise an actionable expectation. In general (see eg de Smith’s Judicial Review (7th Ed) Woolf et al Chapter 12) a legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision. A hope is not enough. This seems unlikely to be a fertile area for consideration, but it must be born in mind.

Assessors

SCA 1981 s 70 (and an equivalent provision for county courts in in County Courts Act 1984 s 63) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 (tacked on at the end of the rules on expert evidence) explains how this is done; though application of ss 70 or 63 in the family court is not as clear as it might be. The assessor could be a person whose opinion – including decision-making – might assist the court. Their role in many ways would not be dissimilar to that of a jointly funded expert. The issue of costs remains (s 70(2)) above; but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds.

So far as I know this has not been done in family proceedings. If a way of funding the assessor direct from HMCTS can be found there is no reason why it should not be attempted.

Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J and the Attorney General arranged for an advocate to the court to be appointed for the father limited to cross-examine a vulnerable witness for the mother. That was dealt with under the Attorney General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869). This remains basis on which the Attorney General becomes involved in appointment of an advocate to the court.

The memo deals with appointment at paras 3-8, and in particular it stresses that and advocate to the court ‘represents no one’ (para 4); so that his/her role is limited to that professionally adopt by him/her not on instructions from any party. Request is made by the court to the Attorney General (para 9) or to the Official Solicitor to appoint an advocate (para 11-12). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).