CLARITY FIRST: DEAR TRANSPARENCY PROJECT…

Clarity first

Dear Transparency Project (http://www.transparencyproject.org.uk/)

I admire what you aim to do; though, as you know, I think your title – ‘transparency’ – is a euphemism. Like the President of the Family Division I think you look through the family law procedural telescope from the wrong end (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/) and think that, because it is family proceedings they must be held in private (see discussion of the illegality of Family Procedure Rules 2010 (‘FPR 2010’) r 27.10(1) (below)).

All family courts, like any court in England, in law must be open, subject to certain well-known exceptions (the most obvious being children law, which – I entirely understand – takes up a significant proportion of the work of family courts). Privacy is the exception, and must be justified. This has been explained time and again by the judges, most recently in eg A v British Broadcasting Corporation [2014] UKSC 25. Family lawyers (backed up, to their shame, by their failure to challenge eg FPR 2010 r 27.10) seem to think they are immune from the rule of the common law.

The modern view amongst family lawyers is, entirely correctly, that there should be ‘transparency’. Courts must be open. The press and public must be allowed in – the open justice principle (OJP) – save in the very small number of exceptions identified in Civil Procedure Rules 1998 r 39.2(3) and explained in such cases as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 through to A v British Broadcasting Corporation [2014] UKSC 25, and any number of high authorities before, since and in between. The OJP rules: Kennedy v The Charity Commission [2014] UKSC 20. And most of these exceptions are in the range of family proceedings (though the recent case in which the Court of Appeal explained the rules concerned a child in civil court proceedings: JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/).

Time to clean up the kitchen

But first, family lawyers, would it not be best if we look around at the kitchen into which the press and public are being so earnestly invited. I enter this caution, not because I do not agree with the OJP, subject to the important exceptions referred to in the cases above. I suggest caution because I fear that the public may be shocked by the grease and grubby black bugs it finds hidden away in the family court kitchen. Its procedural larders hide a variety of illegality and lack of clarity grimes over many parts of its stone-flagged floors.

If I ruled the family law world I’d want to be seen to be sorting out these failings in the family law system as I opened it up – according to what I understood to be the law – to the press and public. I would want to see, not that the substantive law on which it is based is changed – that is a law reform project for another day; but to see that its procedure and administration was lawful and expressed in clear terms.

Illegality and unlawfulness

I use ‘illegality’ in the sense it occurs in administrative law. Lord Diplock in House of Lords characterised it as one of the ‘grounds upon which administrative action is subject to control by judicial review’, that is the foundations of testing the vires (powers of administrators) of public bodies (Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 [1985] AC 374):

By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By ‘clarity’ I mean – er – ‘clarity’ (https://dbfamilylaw.wordpress.com/2014/08/29/transparency-made-simple/); or, more especially, that a law text is capable of being understood by the averagely intelligent layperson (‘AILP’). I do not mean that a text is reduced, like Orwell’s Newspeak, to its lowest common denominator. I trust most readers to be able to read a dictionary. An easy example of this is the change from garnishee to ‘third party debt order’.[1] Both start as meaningless, I suspect, to most lay readers, but I bet that most dictionaries will have ‘garnishee’ and a definition; but not a definition of ‘third party debt orders’. Being a composite term, it is likely that TPDOs will be hard to define from most dictionaries.

Clarity in a text does not mean that a reader should be patronised. It is a matter of good manners and common sense; and for lawyers it means respect for the rule of law, and of lawfulness. Lack of clarity is part of the lawlessness of family law procedure, so I will take ‘clarity’ first as a general subject, and then return to other aspects of illegality.

Clarity

The FPR 2010 rule-makers (the Family Procedure Rules Committee (FPRC)) derive their powers from Courts Act 2003 ss 75 and 76. It has no powers outside those provided to it by ss 75 and 76. Section 75(5) requires FPRC to exercise its powers to make rules –

(5) … with a view to securing that—

(a) the family justice system is accessible, fair and efficient, and

(b) the rules are both simple and simply expressed.

This is a highly subjective test; but to approach an understanding of it, it becomes necessary to define the AILP. Have FPRC done that? I doubt it. It is a test family lawyers must undertake soon. Till then, take for example, the proposed amendment as to FPR 2010 (intended as Part 3A). These amendments are intended to provide for the participation in family proceedings of children and ‘vulnerable witnesses’ (and see eg  http://www.transparencyproject.org.uk/guest-post-by-david-burrows-vulnerable-individuals-and-children-in-family-proceedings/ and http://www.familylaw.co.uk/news_and_comment/draft-rules-for-vulnerable-persons-in-family-proceedings#.VdDG8_mqqko). I defy most readers to understand the draft. Even the term ‘vulnerable’ is not defined; and some of the language is needlessly ponderous.

And do the rule-makers seriously expect the subjects of the draft – ‘vulnerable’ individuals and older children in family proceedings – to understand them? If they do, I fear they have failed my common sense and good manners test.

To make sense of s 75(5) an imaginary reader must be defined. Any text which is not regarded as ‘simple’ to him or her is unlawful: that is the statutory criterion. It is the law. It is not a sort of voluntary extra for FPRC to have in mind or not, according to the prevailing mood of the committee membership.

The importance of a clarity test, in more abstract terms, was explained by Lord Bingham as the first rule of his ‘Rule of law’ (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): namely that –

… 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.

That was in pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 days. I wonder if Lord Bingham’s assumption that legal advice should always be available is tenable today? If so the need for clarity only becomes the more pressing still.

I doubt that much of family law procedural law is ‘simple’, ‘simply expressed’ (s 75(5)) or ‘intelligible and clear’ (in Lord Bingham’s terms). If that is the case then all provisions which are not ‘clear’ are outside the law as set down in s 75(5). Each of those not-‘simple’ rules are a cockroach in the family law kitchen into which the public is being welcomed. Cock-roaches should not be in any kitchen, whether or not it is open to the public.

Unlawfulness

Let’s assume, for now, that the rules are all set down in clear language. Even then, I believe, there are a number which are unlawful.

The easiest to explain is that on which the Transparency Project is based, namely FPR 2010 r 27.10. The majority of family lawyers seem to accept that r 27.10 somehow represents the law. Under the heading ‘Hearings in private’ the rule starts: ‘(1) Proceedings to which these rules apply [ie the vast majority of family proceedings in family courts] will be held in private, except…’; and then two exceptions are set out: that the court otherwise orders, or that another ‘enactment’ (in law that means statutes, rules, regulations and practice directions) ‘provides otherwise’.

Only eight years before FPR 2010 came into effect the Court of Appeal in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 took a lot of trouble to explain why proceedings under Family Law Act 1996 Part 4 (ie ‘family proceedings’ in terms of r 27.10) were public, certainly to the extent of release to the press of documents arising in them. For family lawyers rules on this subject are governed by the common law (best found as codified in Civil Procedure Rules 1998 r 31.21).

It is basic law that a rule, like r 27.10, cannot override the law (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586). The law is (for family lawyers) still the common law and as explained in Allan v Clibbery (above). Rule 27.10(1) cannot reverse the Court of Appeal decision. It is blatantly outside the law, yet it remains part of the rules made by FPRC.

FPR 2010 rr 9.14(4) and 9.16(1) (no disclosure save by Form E or as directed by the court) are so obviously unlawful in the light of MCA 1973 s 25(1) and (2) as explained by the House of Lords Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813, that no one takes any notice of the two provisions. They should not be there; and that they are ignored is not a good advertisement for rule-making, and another cockroach in the kitchen.

A letter written by one spouse (or their lawyer) to the other in an attempt to settle a case (normally confidential as between the two of them under without prejudice rule immunity (WPRI); and known as a Calderbank letter, after a Court of Appeal case) can be shown to the court when it comes to costs. The aim is to show reasonable the spouse who sent the letter has been in his/her attempts to settle a case. FPR 2010 r 28.3(8) seeks to reverse this process and to make it unlawful. This may breach principles of public policy – can a rule change ‘public policy’: I only ask? – as set out by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. That case said WPRI was ‘founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish’. The case of Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586 explains how this works in the case of costs. Rule 28.3(8) is of dubious legality. No family lawyer, as far as I know, has challenged that legality (eg under principles set out in Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143).

Of cockroaches and grease in the family law kitchen

So, my friends, before too much fuss about letting the press and public in is made, it would surely be worth trying to clean up the procedural law kitchen. Illegality cockroaches and lack-of-simplicity grease must go. I would make clear and fully intelligible to the AILP the texts – rules and practice directions – on which family law procedure is based (I leave statute law for now). In doing so I would have Lord Bingham in mind and keep a careful eye on Courts Act 2003 s 75(5).

In doing that, I would make certain that every rule in FPR 2010 was in accordance with the law (statute and common law). Procedure serves the law. It is therefore necessary first to define the law and then to ensure that procedure follows it. It is Parliament and, failing that, the judges, who together make the law; not (as Dicey explained) civil servants and administrators (such as FPRC).

[1] See ‘Does a bell toll for garnishee’ [2002] Family Law David Burrows

FAMILY LAW: CLARITY FIRST

What about cleaning the dirty window first

Paul M of the Transparency Project (http://www.transparencyproject.org.uk/the-emperors-nude-clothes-or-delusions-of-candour/) takes issue with John Bolch’s dismissal of the efforts of family proceedings transparency supporters (http://www.marilynstowe.co.uk/2015/06/08/the-transparency-delusion-by-john-bolch/#.VXW5YFoCRew.twitter ). This note looks at the logically prior point: if you can’t see what your being shown if the dirty window is cleaned, it might as well stay dirty. If those who want to see a transparent family court’s system are still confronted by a maze of confusing laws and inconsistent procedures the laudable efforts of the transparency reformers are of only limited value.

In https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ I likened the legal profession – and the judges who write the judgments are very much part of this – to priests in the pre-Lutheran medieval catholic church. Only they – or those of them who could read Latin – had access to the bible. That was the text which was said to define the church as it then was. The equivalent for court proceedings and modern justice is the various documents and texts which make up the law. If these are not capable of being understood by all who take part in a system of justice then it is not just.

Laws: clear and ‘simply expressed’

Courts Act 2003 says that the drafting of family court procedural rules (Family Procedure Rules 2010) s 75(5) says that the rules should be drafted in such a way that ‘the family justice system is accessible, fair and efficient’, and that the rules themselves should be ‘both simple and simply expressed’. Rules are a good place to start. They define the way cases proceed from issue to trial and beyond: costs appeals and enforcement. If they are difficult to understand it is a bad starting point for litigants.

Many rules are not easy to understand (try following the family proceedings costs rules from an uninformed start). Many rules do not follow the common law (ie they are unlawful: court constraints on disclosure of documents in financial proceedings; the ‘transparency’ rules themselves and some of those same costs rules). Often the rules are not followed by the judges themselves (eg case management rules).

Transparency, by all means – if the privacy of children and family members are properly respected (all concerned in family proceedings have the right to have their family life respected: European Convention 1950 Art 8(1)). But before we spend too much time looking in, let’s make sure we can read and understand what we find behind the grubby windows of the family courts.

FAMILY COURT: SHREDS AND PATCHES TO A NEW RULE OF CLARITY AND FAMILY LAW  

The ununified family court

As I go away for a week’s holiday I record a matter of real sadness to me: the lack of clarity and any underlying philosophy about where family law is going. I take the ‘family court’ as my barometer. I grew up at a time when the Finer Report (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) was published (4 July 1974, when I had been admitted just over a year). It being the 1970s, we had a Finer Joint Action Committee with sub-groups for law; day care; housing and welfare benefits: Finer covered all these subjects including a guaranteed maintenance allowance for single parents (anyone remember negative income tax? It was linked in with that: there were people around then who had grown up with Beveridge and the concept of a welfare state.)

I was part of the Bristol FJAC, and of their ‘legal sub group’. Our main project was working towards the ‘unified family court’ (UFC). We included two circuit judges in our group. As an incidental we had an off-shoot working on ‘conciliation’ (mentioned almost in passing by Finer at paras 4.85-4.90). The conciliation offshoot – I was secretary to its steering committee – ultimately spawned the Bristol Courts Family Conciliation Service in the late 1970s. I remember an evening (17 November 1976) when all attempts to persuade what was then Divorce Court Welfare to take us on had failed, that Mervyn Murch and I agreed that we should get our fellow trustees to go private. So we did. Together he and I set about galvanising our colleagues to raise the cash through trust funds. And so the idea – eventually becoming mediation – grew. (Mediation, it seems to me, still falters for lack of a positive vision of itself and of any proper regulation which the public can trust: but that is for another day.) The Bristol scheme finally died in the 40th year after Finer was published.

A unified family court

The UFC idea was taken on by SLFA (as it now is not). It ran into the ground, certainly in the form Finer envisaged it. The government said it was too expensive; but would never agree a model which could be costed and so to make good that assertion. One idea Mervyn and I had in about 1976 was for a child maintenance scheme fixed administratively according to a person’s income by a county court clerk (all explained on a side of foolscap (A4)). If you didn’t like the figure you could appeal to a district judge who had Matrimonial Causes Act 1973 (or GMA 1973 as it was then) discretion to fix a figure. The child support scheme would never have been if that idea had taken on. But traction for the family court ideas faded, and the idea of a unified family court ceased to be part of any family law reformer’s real agenda.

Imagine my excitement when I discovered that a ‘family court’ was approaching the statute book; though I found it a little odd that the project was tucked away in Crime and Courts Act 2013 Sch 10. No one at Resolution (a group which represents family lawyers) had heard of it; and it could not be moved, then, to take any notice of the new plans. Thus did none of my childish family law dreams fade. The brave new world of a single family court serving the family breakdown community has passed most family lawyers by; and has produced – for all Sir James Munby P’s rhetoric – a thing of shreds and patches; and more or less more of what preceded its whimperish introduction last April. Another layer was added, with the court’s introduction, to the burgeoning maze of practice directions which pass for family procedural law (mostly produced in a scamper a few days before the ‘new’ scheme came on tap).

I find myself writing always ‘family courts’ (never the family court); and it depresses me. Why? (1) There is one particular administrative body which covers a large proportion of family breakdown work (you can’t say ‘family justice’ since that terms has been hijacked off for children proceedings): that is, indeed, ‘the family court’ (lower case initial letters per Sch 10). (2) There is a Family Division which takes particular forms of family work. (3) There is a Central Family Court (in reality Holborn County Court, but district judges there – who wear knee breaches (like real cross-dresser High Court judges) on formal occasions – are terribly touchy about their rank). (4) Child support work still goes off to the First-tier Tribunal; and (5) some goes to the civil arm of the magistrates’ courts. Sir Morris Finer and his committee would weep.

One of the cosmetic problems, I am sure – at least it should be only cosmetic – is that judges are obsessed by rank. You can see this in the fact that we now have to have three sets of reports to cover the little Alsatia (a lawless community off Fleet Street in the early 17th Century, to which Sir James Munby P (as he then was not) drew attention in Richardson v Richardson [2011] EWCA Civ 79: though he asserted that family law was not that) which family breakdown law is becoming. It is therefore essential that each rank is given its type of work, and that it keeps its dignities (as with the Holborn court). And worse: individual courts, even within the one ‘family court’, can have practice direction variations which apply only in their area. That is a truly discriminatory practice (ie unless you practice in Doncaster court you may not know what funny preferences they have there for (say) bundles; or even for what you have to wear in court!). The civil justice reforms of the 2000s were intended to eliminate such geographical discrimination.

A new family law procedural dawn

Where then do family courts go, for example, if Online Dispute Resolution is developed in the civil courts generally (and see further https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/ )? All civil proceedings are subject to the same common law (the point that Munby LJ was seeking to stress when he said family law was not (as he then asserted) some Alsatia). If ODR does take off, will the High Court judges (who have just looked backwards and found it pleasing in their review of financial remedy procedures – http://www.judiciary.gov.uk/publications/financial-remedies-working-group-report/ ) obstruct the idea; will the begaitered district judiciary in Holborn deny the possible costs benefits; or will 2015, 2016 or 2017 finally see the family courts (they remain that, not ‘unified’) peep at a bright new ODR procedural dawn?

And perhaps will Sir James Munby P finally understand that when it comes to procedural law reform and setting up a truly new family court he has, as emperor of the new scheme, no clothes; or little more than shreds and patches. I fear, brilliant judge though he is – and judging is after all a reactive role – he has no clear underlying coherent pro-active philosophy for his reforms. He has no real will to change the Dickensian procedural scheme over which he reigns. He has no vision for clarity in law (for clarity in law see https://dbfamilylaw.wordpress.com/2014/09/23/clarity-in-law-precedent-law/ ) and a system that ordinary people can understand and use.

A unified family court could rise incrementally on the ashes of what we have now (as Finer in part proposed). It would be devoted to a rule of family breakdown law; to clear case management; and, most important of all, to clarity in all laws and rules underlying them. (Everyone – not just a few lawyers – must be able to understand the law and rules – https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ .) The UFC would be based on the common law within a single court administration. It might even have judges (like Lord Phillips, who persuaded some judges to remove their wigs and dress differently in court) who could break their cross-dressing habits and appear – at least in public – dressed more or less normally. That is a completely cosmetic issue, I accept; but oh how important in the context of a new court with a new philosophy of relative modernity.

It is that new philosophy, new clarity and a new devotion to the rule of family law, which this new unified court must embrace. Who is up for making Finer happier in 2024, for his committee’s report’s 50th anniversary?

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

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

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

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

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

Clarity and the family judge

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

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

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

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

Undertakings and orders

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

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

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

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

In the Zipher case Lord Neuberger MR said:

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

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

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

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

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

Family courts and a fair trail

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

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

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

CLARITY – OR SHIFTING MEANINGS

A word means ‘what I say it is’

The meaning of a word must be precise in law. Poetry and some prose can paint with words, meaning moving about the page. In humour meaning may be intended to shift or turn around the same word. Humour – as with Humpty Dumpty’s law (Through the Looking-Glass Lewis Carroll): that a word ‘means just what I choose it to mean’ – plays with words. Meanings shift, or are shifted, deliberately. This is what humour does. But law must build with words; and it must build carefully. Good law demands clarity. Clarity is the direct way to understanding.

Three expressions in common legal use can be used to show how the building of structures in law can be corrupted by imprecision: ‘transparency’, ‘disclosure’ and ‘family justice’. The first – ‘transparency’ – has been hijacked by senior family lawyers to mean chosen journalists seeing into what the family courts do. It is not – so far; and thank goodness for it, so far – a word which any statutory instrument or practice direction has tried to define.

‘Transparency’

Transparency, in this family lawyers’ context, means the opposite of what the law says. It is a common law principle that justice must be seen to be done; and that therefore courts must be open. It is of the essence of justice – it is implied in the word, almost – that it be open. But it is accepted by the common law and by statute that there will be times – children proceedings are the easy example – where the need for privacy in a case will override openness; and it is that way around. It follows from these premises, that family law and transparency have nothing to do with one another. It is justice which is transparent. On occasions that transparency may be – rightly, and in the interests of family welfare (say) – eclipsed. Like the moon, when it is eclipsed, the openness remains. It is only temporarily hidden as required in the particular case.

‘Disclosure’ – in law – means that a litigant (A) sets out in a list for his opponent (B) what documents he has. That is not how most laypeople would understand the term; and it is often similarly muddled, carelessly, by lawyers. Once A has listed – disclosed – what documents s/he has, s/he permits inspection of the documents which B wishes to see, normally by sending photocopies. A and B then co-operate, as trial approaches, by preparing a bundle of documents. These are produced to the court. So in truth – and in law – it is inspection and production (the words italicised above) which is what procedural rules require of litigants; and it is this process, confusingly, which many lawyers wrong call ‘disclosure’.

‘Family justice’: justice on family breakdown

‘Family justice’ does not mean justice for the family: it means, or should mean, justice on family breakdown. In practice it has come not to mean justice for all broken families: it means justice only for those with children. This is a remarkably irritating corruption of a perfectly sensible term. It is only a minority (albeit a large minority) of the cases on family breakdown which relate to children; yet it is only that minority – since, for example, the setting up of the ‘Family Justice Council’ – which effectively attracts the previous portmanteau term.

Does all this matter? Yes it does. If I ask for ‘disclosure’ of documents and you send me a suitcase full of bank statements, utilities invoices, company accounts and so on, when I expected – or should have expected – only a four page list, then someone’s time and part of a tree have been wasted. If I speak of ‘family justice’, when I want to write or talk about – all issues relating to family breakdown – for example the work done by the family courts or covered by Family Procedure Rules 2010 – and you mean only children proceedings, there is potential for a range of misunderstandings. And if I tell you, a journalist friend of mine, that the family court has become ‘transparent’ when in reality some of its proceedings are – or should be – entirely private, then I shall have mislead you as to what the law is.

Clarity must rule

Sir James Munby P speaks of ‘transparency’. Family Procedure Rules 2010 assert that, save where otherwise provided, all proceedings under the rules are ‘private’. In fact both those assertions are, I believe, unlawful. Whatever the President of the Family Division may be entitled to do, the rules may not state something which is unlawful; and nor may I mislead my journalist friend.

And so the discussion comes full circle: to clarity in law. Each word must have a clear meaning which you and I (as lawyers), both understand to mean the same thing; and each word must have the same meaning when we communicate with others. Each building block – each word – must be clear. The structure which the words create will then be strong. Meaning will be as clear as possible. Circumlocution (eg ‘family justice’) or inaccuracy (eg ‘transparency’) can be eliminated. Perfectly respectable words can be restored to their primary use. The structure of communication is further reinforced. Clarity rules.

CLARITY: THE VULNERABLE AND LEGAL AID LAW

Family courts: the vulnerable and the legal aid swamp

Two things have struck me over the past few months, as I write about legal aid and those who are – and mostly are not – entitled to it: first that the very lack of clarity of the legislation which comprises the 2013 scheme[1] denies a right to a fair trial; and that the people it should protect – the vulnerable witness; the victim of domestic violence; the parent who struggles with English; and the forgotten many who struggle with basic literacy as adults – are frequently overlooked.

Clarity

If clarity be the food of law; play on

Give me excess of it, that, with such clarity,

The appetite for obfuscation shall thus die….

with apologies to William Shakespeare (Tempest 1:1 l1)

I have written before of the need for clarity in law (see eg https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/). The weight of statutory provision which confronts the applicant – who must in theory understand it to pass the threshold of court application – is truly astonishing. I say ‘astonishing’ without exaggeration. I read the new Act (the bits I needed to) and all the delegated legislation as it came out. Most was new to me; but some – especially the ‘merits criteria’ and means testing rules – were much the same as before.

But remember: I was broadly familiar with some of the detail already; I have 40 years behind me as a lawyer; and have studied legal aid law in a more or less academic way for 25 of those years. I am literally in another legal class from the vast majority of readers; especially the domestic violence victims and vulnerable people we’ll be looking at shortly. And yet at times I struggled: finding how merits fitted with legal help (or did not); where domestic violence was defined; and whether certain types of work would attract civil legal services – all were things which were not worked out easily.

If clarity is food for the legal aid legislation draftsman (to return to my mangling of the Tempest above) – as by definition it should be – then I fear he is not well-fed. Does not his appetite still live nourished in the swamps of 2012/3 delegated legislation? The tangled roots legal aid legislation are eloquent of the opposite of clarity (as the unspoken sub-text of the cases below well show). So, my friends, here is primary legislation; there, thicker and more verdant, schedules to that legislation. Next is the forest of regulations (essential to define merit of a case and means of an applicant) and growths of Lord Chancellor’s Guidance to case workers. All is obfusc on the draftspersons vigorous mill.

Obfusc and a fair trial: a ground for judicial review?

I mention this now, since it seemed to me, as I read the recent legal aid cases of Gudanaviciene[2] and RofW,[3]that one of the most glaring grounds for judicial review – which many lawyers might not think of, instinctively – was that a fair trial was denied because of the simple fact that an applicant couldn’t get to court at all. He or she could not tell easily whether there was a possibility of receiving legal aid. This was the first step to take before even a lawyer would help to issue process. Without that first step: no claim. It is like denying medical treatment (eg for cancer) to anyone whose lungs, breasts or prostate (say) – on the outside – look OK. It takes a cancer specialist to read what is going on under the skin.

Not only must the battered spouse or partner cope with the violence which creates the need for help. The list of what must be penetrated in legal terms to define legal aid borders on the Kafkaesque: First is the variety of schedule and regulations considered by RofW (see below). Next is the law which defines means (eg Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) and the merit of her case (eg Civil Legal Aid (Merits Criteria) Regulations 2013) – the content of which is far more intimidating than the titles of these regulations (not considered in RofW, which is a mystery). In logic the legislator should assume that all this must be considered before a victim can consult a lawyer (just as I must believe I have a medical complain before I go to a doctor). Rank complexity – or basic lack of clarity – should surely be a ground for declaring legislation like this unlawful?

And if all this fails – and when you, dear applicant, have understood it all – you can check out whether you have a chance of a exceptional case determination; and that is another substantial arena where the fog of law unclarity needs simplification (see Gudanaviciene (above)). For that you’ll need an understanding of human rights jurisprudence which is probably beyond the knowledge of most practising family lawyers; an understanding of why the procedure is so complex in your particular case; and then it’s easy… Seriously, it’s a substantial area, to which I shall retun.

The vulnerable, victims, and allegations of abuse

And, finally, back to victims of domestic violence, children as witnesses alleging abuse, and the variety of people – witnesses, parties etc – who together in a civilised society in a family breakdown system[4] merit protection in and around the court process. The Courts and Tribunals Judiciary (see below) speak of them collectively as ‘vulnerable witnesses’ and children. Where do they fit in the legal aid palimpsest?

Summer’s blaze of family court ‘consultations’ included, amongst three consultation exercises, that of the Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ (Courts and Tribunals Judiciary: 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/ ). An aim of this group was to propose ‘a new mandatory (sic) rule… supplemented by practice directions (PD) and guidance approved by the President’). My response was submitted on 5 October 2014 (https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ).

One rule (whenever is a rule not ‘mandatory’?) is plainly inadequate. So too is the speed at which the group is working. (At least it should have told us by now that its canvas must be much wider than its ‘interim report’ suggested.) Re K and H[5] shows how important is but one aspect of this substantial subject: of how to protect children as vulnerable witnesses. Parties will be victims of domestic violence, and thus often vulnerable. Others, such as Ms Gudanaviciene, the non-English speaking proposed deportee and mother of a small child (her lack even of English to wade through our law justified an EDC said the Court of Appeal) need protection. The ‘vulnerable witness’ aspect is but one which links the strands of this, still further, aspect of unmet legal need.

Let us assume there really is no mare cash (well not much, save for a broader brush approach to ECD) in the Ministry of Justice legal aid budget, much can still be done to improve the family law system. Clarity of law (once done that should save money: takes less time to read, to understand and to explain to a judge) is one thing. The other is to provide a more rational system – case management, funding and attendance in court – for those who the family court system must protect.

[1] Under Legal Aid Sentencing and Punishment of Offenders Act 2012

[2] R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (Lord Chancellors Guidance to case workers partially unlawful, and ECD under LASPOA s 10(3) and its meaning explained).

[3] R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin) (limitations on grant of domestic violence legal aid intra vires the regulation-making powers of the Lord Chancellor); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/domestic-violence-restrictions-on-grant-of-legal-aid#.VM0NS2jF81Y

[4] I avoid ‘family justice’ as that term has been hijacked by children lawyers

[5] Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge (HMCTS to fund an advocate to cross-examine for the court and an unrepresented father, a child who alleged he had abused her); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/family-court-funding-2015#livefyre-comments

CLARITY IN LAW: PRECEDENT LAW

Citation in family cases

In my ‘A Luther for family law’ (https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ ) I wrote of the need for clarity and demystification in law. This remains a priority. (A similar point in relation to judgements is made by http://transparencyproject.org.uk/accessible-judgments/ and ‘Transparency’.) The law should not be made more complex than it need be. The increasing number of unrepresented parties, and family lawyers, believe they must read the burgeoning variety of family court judgements. Buy why?

There are two neutral citation sources below the Supreme Court and Court of Appeal (which each have their own variety of family cases); and BAILII have further subdivided the second into two:

  • Family Division cases: EWHC (Fam)
  • Family court cases (High Court judge): EWFC
  • Family court cases (other judges) also EWFC

There are three sets of reports at first instance (or on appeal from district judges) where we now have to look for that Re B case – always assuming it was definitely not dealt with in the Court of Appeal or Supreme Court after all….

The question which any reader, adviser and, preferably, any publisher of law reports must answer is: does the particular case create any sort of precedent? If not it should not be cited and – though there is no control of this – it would be preferable if it were not published. (In 1990 Booth J, in the Family Division, could be heard complaining of over-reporting of cases then: what would she think of the state of affairs today?)

Precedent law

A summary of what courts treat as precedent can be found in Practice Direction of 9 April 2001: Citation of Authorities [2001] 1 WLR 1001 where it is directed – and this remains formal good practice in all courts – that save where a judgement clearly indicates that ‘it purports to establish a new principle or to extend the present law’ (para 6.1) certain categories of case may not be cited at all in court (para 6.2) (ie according to the Practice Direction it is unlawful so to do):

  • Applications attended by one party only
  • Applications for permission to appeal
  • Decisions which establish only that a case is arguable
  • All county court cases (there was no family court then) save to deal with an issue not decided at higher level which affects decisions at county court level

The recently reported Family Division case of AB v CB [2014] EWHC 2998 (Fam), Mostyn J is a case in point. In 94 paragraphs the judge refused permission to appeal. He made further comments which found their way into the press (there can be no objection to that; though a press report does not confer precedent status). As a precedent the case is of no value: the judge refused permission to appeal. The case represents no more than the musings of one High Court judge in the course of his refusal. Had Mostyn J given permission to appeal and then refused to allow the appeal that would represent a quite different state of affairs.

According to the Practice Direction – signed off by Lord Woolf LCJ not only is the case of no precedent value; but it is positively contrary to court practice to cite it (para 6.2).

Real law

So what is precedent? In his book Rule of Law Tom Bingham (Lord Bingham of Cornhill to you and me) wrote of the role of High Court judges moving the law ‘along a line’; and that most judges are reticent about doing this other than incrementally. A new point comes up and a judge must decide it. That I would suggest is the main criterion for precedent: do cases ‘move the law along’? Do they establish a new principle by which others may be bound?

Many family cases depend entirely on their facts: for example, did a particular set of facts amount to significant harm? Or they are decided as a matter of judicial discretion according to how a judge considers particular assets and income should be distributed. Fact- or discretion-based decisions, if that is the extent of what they decide, by definition are not precedent; and there is limited value in citing such cases, however high the level of judge.

A good judgement will set out early on what the issues are for trial. The reader can see if these involve fact, discretion or law; and only if it is the last should consideration be given to citing the case. It would be wonderful if law reporters would exercise their own discretion by not reporting cases which establish no precedent; but when the President of the Family Division is so keen to see so many cases reported there is probably little the law reporter can do. Another publisher might yet come forward to publish only real law.