Top twelve family law cases for 2017


Miller to Mental Capacity Act 2005


A review of my top twelve family law cases for 2017 must mention – no more – R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583. It drew attention Brussels IIA (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility) as being an example of legislation which any ‘Great Reform Bill’ (such a silly name, now European Union (Withdrawal) Bill)) could not replace. It requires co-operation from other EU legislatures and judiciary which may – or may not: we do not know yet – be forthcoming.


Lady Black must be congratulated for her promotion to the Supreme Court; but for clarity of law-making her brother McFarlane LJ remains the star. In the High Court it is hard to choose only a handful of cases when we have lawyers of the calibre of Peter Jackson (now LJ), Cobb, Keehan, MacDonald, Hayden and Baker JJ pushing out the judgments (I don’t mention Mostyn J, who is too self-indulgent; and he is too wobbly as a lawyer to be a good judge).


It is odd that it is the male judges who send in their judgments to BAILII. The common law (for it is reported, not unreported decisions which frame the law) – like other things in life, perhaps? – tends to be made by boys, even in family law. I have limited each Family Division judge to only one case. No women reach this cut, which may be very unfair: where are Parker or Theis, Russell or Roberts JJ, for example? Not even Lady Hale, whose judgements in her thirteen years in the Supreme Court have done so much to reform and define family law, makes it in Supreme Court judgments this year.


Nor have I found it possible to include in my dozen one judgement from the President, Sir James Munby. Perhaps in part this is because amongst his duties is work on obscure subjects like HRH Princess Margaret’s will and cases brought by the Queen’s Proctor such as Grasso v Naik (twenty-one irregular divorces) [2017] EWHC 2789 (Fam). Twenty-one divorce petitions issued from the same address by a struck-off barrister were revoked or set aside. After the initial explanation of the law and a scan of the evidence you could tell that Sir James was thoroughly bored by the whole thing. Neither case – the will and the QP application – add much to the use or ornament of the principles of family law.


The appellate courts


2017 began with all eleven Supreme Court Justices delivering their split (8:3) judgements in Miller. Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 explained that an undertaking, pre-curial to a court order could be varied in narrow and appropriate circumstances (Birch by the way was ignored by Mostyn J in his administrative exercise of CH v WH (Power to order indemnity) [2017] EWHC 2379 (Fam) as explained here R (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) [2017] UKSC 51, [2017] 3 WLR 409 makes the cut as a family law case. It is pervasive to all litigation. It elegantly and authoritatively defines rights to justice and the rule of law.


The star for me of Court of Appeal cases is Re T (A Child) [2017] EWCA Civ 1889 in which McFarlane LJ explains the breadth and utility to parties and children in family proceedings of the non-molestation order under Family Law Act 1996 s 42; in this case to protect a child who was in foster care. In so doing he refuses to define ‘molestation’ or ‘domestic abuse’ (see, by contrast, the effort to do so in the revised FPR 2010 PD12J para 3: for a pre-Re T discussion of PD12J see It depends on the circumstances and whether they come within the broad meaning of molestation in Family Law Act 1996 s 42.


In Hart v Hart [2017] EWCA Civ 1306 Moylan LJ produced a master-class on the back-ground to the modern – ie post White v White [2000] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 – law on ancillary relief; and in particular in relation to ‘non-matrimonial assets’ (eg inherited, after acquired or earned by exceptional effort assets). Mrs Hart, much to the unbridled disgust of her own lawyers, Irwin Mitchell (who should have restrained their comments on the judgment) failed in her appeal. A judge has a wide discretion in these things. All lawyers, Irwin M included, must learn that discretion does not always fall the way you expect – or in the way you have advised your client to expect.


In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 Sir Ernest Ryder (as President of Appeals Tribunals) emphasised that care is needed by courts in how they treat the evidence of vulnerable witnesses (here in an immigration appeals tribunal). It is an important case for anyone acting for a vulnerable party or witness in any form of court proceedings: criminal, family, civil or administrative tribunal (as here). Two particular issues arose which are relevant also eg to children proceedings: the way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and the importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done) (please note authors of the recent FPR 2010 Pt 3A on vulnerable witnesses: and see David Burrows on ‘Evidence of children and vulnerable witnesses: Part 1’).


European cases


Maybe I’ve been a little biased in singling out EU regulation cases; but the hole being bored in our family justice system is still only present, for now, in its ignoral by most family lawyers. In B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) MacDonald J explained the background to the stay jurisdiction and why in this case the former wife and the English courts must await a decision from the Milan court. In FE v MR & Ors [2017] EWHC 2298 (Fam) Baker J considered whether Brussels IIA Art 15 enables the court of a member state (a requesting court, R) to request another to transfer a case from that member state’s court to R’s court. Were the children’s circumstances exceptional and would the requesting court ‘be better placed to hear the case’ (Art 15.1). Baker J considers the factors which should influence him in requesting a Spanish court to transfer a case to the English courts, where two children aged 14 and 11 of Spanish parents, were living in England, but had been subject to proceedings in Spain for four years.


One money, one ‘private law’ children case; and finally a ‘public law’ case, all under Brussels IIA. In Redbridge LBC v D, E, F and G (Children: Art 15 – transfer of the proceedings) [2017] EWFC B82, HHJ Carol Atkinson as High Court judge dealt with an application under Art 15 in respect of 4 Roma heritage children from Romania. An application for a transfer of the proceedings to Romania, pursuant to Art 15 was issued by the mother in April 2017. The English court had jurisdiction based on habitual residence. Judge Atkinson provides a text-book analysis of the law to determine this application, by reference to leading case law and concluded that it would not be in the ‘best interests’ of the children to transfer the children; at least not at this stage.


In the tragic case of Re Gard (A Child) [2017] EWHC 1909 (Fam) (and see ‘Lessons from Gard’), Francis J did what a Family Division judge sometimes has to do, and he did so with great dignity and care. Charlie suffered severe brain damage and could not see or hear or breathe because of a mitochondrial condition. Your heart bleeds for his parents, who – or on whose behalf – every legal and medical stone was turned. Spare a thought too for the Family Division judge who has to say a child must die.


In Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J – with enormous care, and attention to detail of the evidence – explained why children should go into care and why the ABE evidence adduced before him was admissible and credible. An oddity of the case remains that information which should have been covered by legal professional privilege – as I read the report (see eg here) – was compelled to be produced by a lawyer who took part in the early stages of the case.


Peter Jackson J (as he then was) would be the first to accept that Re A (Letter to a Young Person) (Rev 1) [2017] EWFC 48 broke no new ground, in law. It has to be included here as a very real attempt to open up to a ‘young person’ (a young boy who had, originally, made his own application to go to live with his father in a ‘Scandinavian’ country). When courts are being reminded daily that the views of those children mature enough to be consulted – if they want to be consulted – must be taken into consideration (see Charter of Fundamental Rights of the European Union Art 24: also proposed to go with EU withdrawal), for a judge to ensure that the traffic flows in both directions is surely a very good thing?


My favourite case of 2017 is Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam). In it Cobb J combines, with the typical sensitivity of a fine children lawyer, an understanding of how one of my favourite cases of all time – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – with a subject which is essential to all family lawyers Mental Capacity Act 2005. He shows how these two subjects complement one another in relation to a child’s or other person’s understanding and ability to consent (see eg ‘Capacity to consent’).


Happy Christmas to any and all of my readers…


David Burrows

24 December 2017



Common law and statute law: the hierarchy of law-making

English and Welsh law is made up of common law and statute law – what I shall call, together, primary law; and, of the two, statute law will always trump common law. Common law is made for the most part by judges of the High Court, Upper Tribunal, Court of Appeal and Supreme Court. Statute law is made by Parliament (strictly speaking by the queen in Parliament).

Many modern statutes, of necessity, delegate law-making to government departments or to other statutory bodies. These bodies are then responsible for making subsidiary (or delegated) legislation, subject only to parliamentary approval. Much of the legal aid scheme depends on various levels of subsidiary legislation, as does the child support scheme; and family law could not work without Family Procedure Rules 2010 which are delegated to Family Procedure Rules Committee by Courts Act 2003 ss 75 and 76.

Subsidiary to this delegated legislation, and not even subject to direct parliamentary approval, are certain murky powers – some statutory and some less so – to issue guidance and make practice directions. Thus under Legal Aid Sentencing and Punishment of Offenders Act 2012 s 4 the Lord Chancellor has be given power by Parliament to issue guidance as to the operation of the exceptional case funding provisions of LASPOA s10. President of Family Division is able (nominally with the approval of the Lord Chief Justice) to issue practice directions for the guidance of litigants in family proceedings; and Family Procedure Rules Committee (see below) has powers to make such directions also.

The Lord Chancellor’s guidance  on exceptional case funding ( has been twice successfully shown in certain important respects to be unlawful (R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and again in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin), Collins J). Twice this year already practice directions have been shown by Supreme Court to be outside the powers – ultra vires – the body with power to make them; and Family Procedure Rules Committee have consigned most aspects of care proceedings in a way which is of such detail and which avoids legitimate statutory or delegated legislation, such that it is, in many respects, of dubious lawfulness. (Children lawyers are such a supine bunch that they do not trouble to take the Lord Chancellor or FPRC (his committee) to task for this).

Subsidiary legislation: within bounds defined by Parliament

The critical feature of all this is to appreciate that delegated legislation can only exist, lawfully, if it comes within the bounds defined by Parliament; and, as Collins J explained in IS, guidance – even more so – must come within the intent of the statutory scheme as set out by Parliament (that is the point of democratic direction to ministers: and see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).

And thus the law comes full circle. Judge-made common law comes back into play to explain what a particular statutory provision means (including delegated legislation and guidance, as with the Gudanaviciene and IS cases); or to say that subsidiary legislation is not within the powers delegated by Parliament.

An excellent example of the creation of law by the judges is the Gillick case. Family Law Reform Act 1969 s 8 says that a child over 16 can consent to medical treatment as if the ‘child were an adult’; but under that age the question of a child’s consent depends on their age and understanding as defined or explained by Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112, [1985] UKHL 7, [1986] 1 FLR 224. The first period – 16-17 is entirely statutory; but to understand the rights of a child up to his/her sixteenth birthday we are dependent entirely on the common law.

As Lord Scarman explained it:

The law has, therefore, to be found by a search in the judge-made law for the true principle. The legal difficulty is that in our search we find ourselves in a field of medical practice where parental right and a doctor’s duty may point us in different directions. This is not surprising. Three features have emerged in today’s society which were not known to our predecessors: (1) contraception as a subject for medical advice and treatment; (2) the increasing independence of young people; and (3) the changed status of woman. In times past contraception was rarely a matter for the doctor:…, women have obtained by the availability of the pill a choice of life-style with a degree of independence and of opportunity undreamed of until this generation and greater, I would add, than any law of equal opportunity could by itself effect.

And thus is a balance held and a symbiosis maintained: first is the common law, save where – secondly – the law is developed, altered or codified by Parliament. Subsidiary to statute law are the forests of delegated legislation and guidance. And then, finally, the judge’s sweep up: watching over laws set out by Parliament and searching out Lord Scarman’s ‘true principle’ where none has yet been defined.

…and a small voice in me wept for justice

Open justice principle and ECHR

The most recent addition to the Family Division bench McDonald J could be heard uttering – in H v A (No2) [2015] EWHC 2630 (Fam), McDonald J (17 September 2015) – the following (and, as I read it, a small voice in me wept for justice):

[26] Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and (italics added), accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of the European Convention. In some cases other rights will also fall to be placed in the balance.

McDonald J had just quoted this ‘succinct’ summary from a judgment of Sir James Munby P in on the subject of privacy in family proceedings in Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 as follows:

[21] What may be called the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child… So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

[22] The court has power both to relax and to add to the ‘automatic restraints’. In exercising this jurisdiction the court must conduct the ‘balancing exercise’ described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47… This necessitates what Lord Steyn in Re S, para [17], called ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention)…. As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para [25], it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para [33].

Common law and exceptions to the OJP

Look at the italicised passage above, again. According to Toulson LJ (in a passage not cited in either of the above two Family Division citations) the roots of the open justice principle (‘OJP’: and we are talking children law here, so it is exceptions to the OJP we are concerned with) are the common law, simple and pure:

[1] … Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

Though only three years old that passage has been approved at least three times in the Supreme Court: Kennedy v The Charity Commission [2014] UKSC 20, A v British Broadcasting Corporation [2014] UKSC 25 and Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700. The common law roots of the principle can be seen from way before European Convention 1950 jurisprudence; and were stressed in such cases as Scott itself and Attorney General v Leveller Magazine Ltd [1979] AC 440.

Toulson LJ concluded his judgment as follows:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that Magistrates Courts were created by an Act of Parliament is neither here nor there. So for that matter was the Supreme Court, but the Supreme Court does not require statutory authority to determine how the principle of open justice should apply to its procedures.

He allowed the Guardian’s application to be permitted to read documents read by the district judge (magistrates’) before making her decision.

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

In Attorney-General v Leveller Lord Scarman stresses the common law point that it is for the judges in their inherent jurisdiction to determine exceptions to the rule, save where it is determined by statute (the point made by Munby P above). The child law jurisdiction has been treated, at common law (largely derived from wardship), as an exception; just as equity dictates that there should be an exception, if to publicise the subject matter of the dispute (eg patents) would destroy it; and national security can dictate privacy to proceedings (discussed fully in Leveller). These principles are noted in Administration of Justice Act 1960 and Civil Procedure Rules 1998 r 39.2(3); but they are not defined by them – any more than they are by European Convention 1950 jurisprudence.

A common law root: does it matter?

This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion: anyone who wants chapter and verse on that is welcome to ask me).

So yes, McDonald J’s was plainly the correct decision; but I do urge him and all his brothers and sisters on the bench to be aware of the source of their powers. A simple and sound introduction is Scott tempered by Scarman (especially) in Leveller. (He cites a nice case of a ward whose details were publicised – Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA including Scarman LJ – and William Deedes of the Daily Telegraph (orse ‘Dear Bill’) was not sent to prison, nor even was he in contempt. Nicholas Wilson (now Lord Wilson etc) was in it, being led by Waite QC (later LJ).

Re F is a live piece of law, though rarely cited, on the issue of whether Administration of Justice Act 1960 created new law, or declared the old. In effect the Court of Appeal held it declared the old; and that remains the case today; which brings this note full circle.

I would say, respectfully, that McDonald J should have said:

[26] …outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights defined by the common law, rather than under ECHR…

…. But then, who am I to say?


Exceptional case funding for the vulnerable and a ‘statement’ for high net worth cases

In the first half of July 2015 two documents emerged for consideration by family lawyers. It is worth reflecting on their significance for family law litigants, for family lawyers and for the rule of law. I refer first to the judgement of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) given on 13 July 2015; and secondly to a ‘statement’, ‘revised’ and reissued on 1 July 2015, by – it says – the Judiciary of England and Wales and entitled Statement on the efficient conduct of financial remedy hearings allocated to a High Court judge whether sitting at the Royal Courts of Justice or elsewhere (the FR statement:

In the case Collins J develops the common law by explaining what the exceptional case funding (ECF) scheme under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10 and revised Lord Chancellor’s guidance (under LASPOA s 4(3)(b)) has still not complied with what Parliament intended. Collins J was particularly concerned for the legal aid rights of the vulnerable and those lacking capacity.

The FR statement could have been – I say it should have been – issued legitimately as practice direction alongside FPR 2010 rr 1.4 and 9.15 (court’s case management duties). It relates to case management in higher net worth matrimonial finance cases (£15M+ total assets). It records that Mostyn J, the author of the document, is ‘authorised by the President [Sir James Munby] to release this statement’ (§1). (The President has full statutory powers to issue Practice Directions; and he chairs the Family Procedure Rules Committee (FPRC) which is responsible for making rules for family proceedings (Crime and Courts Act 2013 s 75(2)).

Legal aid: case law reforms

In I recorded that the score for civil legal aid case law (LA Apps v LAA) was 5-2 against LAA (the Lord Chancellor). IS is one in what will no doubt be a continuing legal battle between the Lord Chancellor and his judges as they explain to him that – even by his own, and his now politicised civil servants’, standards – he has got wrong what Parliament told him to do in LASPOA s 10 (the safety net designed for those who are no longer entitled to civil legal services under the 2013 scheme). It is a remarkable struggle to watch – especially when judges like Collins J is out in the field; but it is depressing also to find that the government minister entrusted with the rule of law is so frequently found to be acting illegally.

I explain how I arrive at the 5-2 score in; and this does not include King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) and Brown v London Borough of Haringey [2015] EWCA Civ 483 where the Lord Chancellor was criticised for the opacity of his scheme for legal aid for committals (recently, it is to be hoped, clarified: as explained here In my above blog and at I have discussed IS. The legality of the FR statement must now be considered.

Legitimacy of the FR statement

The statement seems to do what its title suggests. I do not know how many anticipated contested cases it covers; but it cannot apply to a case unless ‘The overall net assets exceed £15m’ (§3(1)), perhaps only if more. It seems to me, the ‘statement’ only deepens the veneer of illegality (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Diplock) which shrouds the financial relief procedural rules. Family finance lawyers live with it, it seems; but the rules which they allow their clients to undergo are riddled with illegality; and this FR statement only adds to that.

One thing that the spate of legal aid cases against the Lord Chancellor must have taught family lawyers is always to be sceptical of delegated legislation. Has the body which produces that legislation got power so to do? IS explains why the Lord Chancellor guidance does not comply – still – with statute law.

For the making of family proceedings rules  FPRC’s powers go no further than Courts Act 2003 ss 75-76 (eg they may ‘modify’ rules of evidence: s 76(3): no more); and yet amongst the errors in FPR 2010 Part 9 (and its supporting rules) are the following:

  • FPR 2010 r 5.2 deals with filing of a financial statement (Form E). Documents must be filed as set out in the rule (and as Blake J noted in Kings Lynne (below) a form cannot change the law). These documents include:
  • A valuation of matrimonial assets and eg any business. Basic common law principles make it clear that that valuation information is covered by litigation privilege (Waugh v British Railways Board [1980] AC 521); and only the person to whom the valuer has reported can waive privilege.
  • Value of a property which a party seeks: the court is not entitled to insist on such an admission, which might in a minority of cases prove a hostage to fortune
  • FPR 2010 rr 9.15(2) and 9.16(1) are hopelessly ultra vires. They are obviously against the law as set out in MCA 1973 s 25(1), as explained by the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813. Fortunately no one who is legally represented takes any notice of these rules; but what if a keen litigant in person insists upon them? Will a district judge have to say: well, yes, you are right Mr/s X; but don’t take any notice of those rules – they’re not lawful.
  • Denying a person the right to refer to a Calderbank letter by a rule change – ie the rule represents the overriding public policy by a MoJ committee whose brief is defined by Courts Act 2003 s 75? Maybe that’s legal (even if illiberal) but it surely sails close to a legality wind?

Making the law

This is not the place for a detailed discussion of how the law is made; but it is worth recording the following outline (offered at a level applicable at law school):

  • Primary law: our law is based in the common law. This and statute law is what I term ‘primary law’.
  • Common law can be overridden by statute expressly or by implication; or, as is often the case, by a statute putting into Parliamentary words what was, or often remains, the common law (see eg Administration of Justice Act 1960 s 12(1)(a) for private trials of children proceedings or Proceeds of Crime Act 2002 s 330(10) for a definition – in that context – of ‘privileged circumstances’).
  • Statute may empower Ministers or other bodies (eg FPRC: Courts Act 2003 s 75) to make regulations or rules ie delegated legislation.
  • In the civil litigation context Constitutional Reform Act 2005 enables certain defined individuals (mostly the Lord Chief Justice, but also the President of the Family Division) to make practice directions (as explained eg in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171).
  • Statutory ‘guidance’ (Lord Chancellor guidance, under LASPOA 2012 s 4, was at issue in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and many children lawyers will be familiar with the guidance contained in Working Together (March 2015)).
  • The common law comes into the frame again, where judges – mostly at High Court level – explain what any of the above mixture of primary and delegated laws mean in a given situation and where two or more parties cannot agree.
  • Below this we enter the murky area of ‘practice’ and other non-statutory ‘guidance’; protocols (there are a variety of protocols which accompany CPR 1998); and now, it seems, ‘statements’.

So far as any of the instruments at (7) are concerned their authoritative basis will always be debatable. They are not statutory: compare eg the guidances at (5) which is prescribed in an Act of Parliament; or as a practice direction – if properly made – will have a legal basis. Bovale above explains this point. The authority of the Munby/Mostyn FR statement, seen in this light, is limited (and could as well be done properly by a practice direction alongside FPR 2010 r 9.15(5)(c).

This hierarchy of authority applies in all contexts, whether a legal adviser or other reader is looking at delegated legislation or guidance under eg LASPOA; as it does to the rule-making and other regulatory powers of our family law administrators (a job often taken nowadays by senior judges).

‘Illegality’ and rule-making

‘Illegality’ was explained in the administrative law context by Lord Diplock (and thirty years later the definition holds good) in Council of Civil Service Unions v Minister for the Civil Service (above):

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.

Once a judge puts out a statement like the financial remedy statement, he does not do so as a judge, any more than the Lord Chief Justice or the President act as judges when they make practice directions. Judges take on a hybrid capacity: they become legislators when they make practice directions or administrators (part of the executive) when they define case management. They are civil servants, or functionaires in France or aparatchicks in more authoritarian regimes.

In administrative law terms High Court judges become decision-makers. They must ensure that they have the statutory power to make their decisions; and their decision-making powers – like those of any other functionary – can be challenged before a High Court judge, as Lord Diplock explains above.

Sir James Munby P and FPRC have ample powers to frame delegated legislation (respectively practice directions and family proceedings rules). They do not need another functionary – like Mostyn J, in this context – to frame any further sub-subsidiary legislation.

Fiddling with £15M assets while legal aid Rome burns

I return to a comparison of family law’s concerns with the vulnerable and financially needy and with those who are arguing over £15M, and often much more.

A series of senior High Court and Court of Appeal judges (only a couple of them with any known family law practice) have in a series of very carefully argued judgements developed the common law, legally and authoritatively in the area of exceptional funding (much of it in relation to, or directly affecting, family proceedings). These judges include Collins J (x 2) in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin) and IS (above); Blake J in King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB); Beatson LJ and Ousely J in R (ota Ben Hoare Bell Solicitors & ors) v The Lord Chancellor [2015] EWHC 523 (Admin), Green J in R (ota Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin); and half as many cases again in the Court of Appeal.

Mostyn J and Sir James Munby P have made the obiter comments on legal aid. They are of force but no enforceability. For legal aid litigants they butter no parsnips (unlike eg the judgments of Collins and Blake LJJ and the Court of Appeal). They have spent many hours over case management of high net worth cases. If their joint efforts had been directed to producing a ‘statement’ – concurred in, preferably, by all Family Division judges – on how to deal with ECF or legal representation for vulnerable parties (both subjects covered by Collins J in his 30+ page judgement in IS) then perhaps the cause of family justice for the many (not just the few whose assets exceed £15M+) might be further forward.

And it must be recalled: the findings of the High Court, the Divisional Court and the Court of Appeal on questions of legal aid, referred to throughout this article, represent the common law. They are put out by Senior Courts judges of the highest calibre in open court often after detailed legal argument by specialist lawyers. The financial remedy statement is not the law. It is but a document produced by one more senior Ministry of Justice civil servant.


Rights and freedoms guaranteed by common law

In her address to the Constitutional and Administrative Law Bar Association on 12 July 2014 ( ) Lady Hale (Supreme Court justice) balanced the rights bases of human rights jurisprudence with those of the English common law. On a more modest canvas (see ) I considered the extent to which family lawyers have failed to understand the common law (there in its simplification of the problems they think they are grappling with when it comes to open court trials of family cases).

This article and its successor will seek to draw out the following:

  • That the vast majority of the most fundamental rights – which by definition are ‘human’ – and freedoms protected by English law are derived from the common law;
  • That much statutory provision which deals with rights is merely a codification of long existing rights: as Lord Cooke puts it in Daly below: ‘Conventions, constitutions, bills of rights and the like respond by recognising rather than creating [rights]’; and
  • Certain Convention rights (though not all: it is arguable that Convention jurisprudence has given the common law a new approach to privacy) can only be explained, in English law, by reference to the common law

It is therefore crucial that any judge who is considering a statute appreciates that it may be only a step on a common law line which the statute ‘recognises’. It by no means creates the law. For example a deep rooted common law principle is legal professional privilege (the right to discuss matters in inviolable privacy with a lawyer). This concept has been defined in a number of statutes. Those definitions do not define the subtleties on which privilege is based, and never can do. It is the common law which defines privilege, and it is the judges which refine and re-define it (or not: see R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1).

Common law and the European Convention 1950

Lady Hale’s starting point is to demonstrate the tendency of lawyers to regard Human Rights Act 1998 and articles under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as being the starting point for a consideration of rights issues:

…this [she said at page 4] is to misunderstand the relationship between the Convention and the common law in our domestic law, and to overlook the continued and developing protection offered by the latter.

Critical to this relationship is the passage of Lord Cooke in R v Secretary of State for the Home Department exp Daly [2001] UKHL 26 (

[30] First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them. [The passage quoted by Lady Hale is italicised.]

In Daly the House of Lords was concerned with the narrow issue of whether a prisoner, whose cell was being examined by prison staff in his absence, was entitled to be present when correspondence covered by legal professional privilege (this term is explained below) was being looked at. His appeal was allowed. Lord Bingham’s short speech was the main basis for the decision:

[23] I have reached the conclusions [that the appeal should be allowed] on an orthodox application of common law principles…. But the same result is achieved by reliance on the European Convention. Article 8(1) [right to respect for private and family life] gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly’s exercise of his right under article 8(1) to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result….

Common law: not an ‘ossuary’

The question of the relationship of common law to the European Convention 1950 arose in Kennedy v The Charity Commission [2014] UKSC 20 ( In Kennedy the Supreme Court was considering a claim by a journalist to see confidential papers under Freedom of Information Act 2000. The appeal was dismissed (the journalist was not allowed to see the papers); but the court considered very fully the rights in play. Anyone reading the judgements will find that of Lord Toulson the most easily assimilable (an ‘ossuary’ is somewhere to keep bones), in which he says:

[133] [My analysis] is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary. [The passage quoted by Lady Hale is italicised.]

This article (next instalment) will test the three points which set out at the beginning by reference to common law and European Convention 1950 principles and specifically in relation to Art 6.1 (right to a fair trial). Fundamental rights and freedoms – ‘human’ rights, I say, is a tautology; and the common law and European Convention 1950 are also designed to protect freedoms – of legal professional privilege, the rule against bias, audi alterem partem (hear the other side) and ‘equality of arms’ will be touched upon.

Fundamental rights: dismantling rights and freedoms

Before looking at rights and the common law it is necessary to recall – for any politician who wishes to dismantle the Human Rights Act 1998 – that the rights and freedoms which the European Convention 1950 protects, are mostly those protected by the common law. Repeal of the Human Rights Act 1998 therefore will do very little. To get rid of most of what the Human Rights Act 1998 stands for to a Daily Mail reader a politician must legislate to undermine fundamental common law rights. And that must be done by express statutory provision, line by bitter line.

Thus, Parliament can legislate in a way which is contrary to common law rights; but if it does so (Lady Hale touches on this point in her speech at page 3) it must do so clearly and in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien [1999] UKHL 33 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners)

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

Lord Hoffman returned to this point in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 (a case concerning fundamental rights and legal professional privilege)

[8] … the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication … [ex p Simms (above)] contains some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) 1 Pl 199.

The European Convention 1950 was mostly drafted by English common lawyers, from their own common law experience. Get rid of the Human Rights Act 1998 and you find – hardly the next skin on the onion, but the image will do – the common law. It is a carapace which protects all the rights which in its different way also does the Convention; and life in relation to rights and freedoms will go on much as before subject to any assault upon them which any Government seeks to inflict.


A right to know?

This note seeks to answer the question: can a private individual request disclosure of information in relation to an inquiry set up by a Government minister. Specifically can a member of the public insist on disclosure of information as to the qualifications and impartiality of an inquiry panel member to take on the job? Can a member of the public in any way challenge the bias (‘bias’ is a technical legal term in this context already explained in specifically there in the context of Mrs Fiona Woolf’s appointment to chair a child abuse inquiry) – or possible bias – of a panel member? Can that person see relevant information as to what is known by a Government department of a panel member?

The short answer is that probably a member of the public is entitled to this information under general principles in Freedom of Information Act 2000 s 1(1):

1 General right of access to information held by public authorities.

(1)Any person making a request for information to a public authority is entitled—

(a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)if that is the case, to have that information communicated to him.

That said, the law on inquiries is not as clear as it might be. I will concentrate here on a discretionary inquiry set up by a minister; but I shall say that for disclosure purposes common law rules for a discretionary inquiry are much the same as those set out for statutory inquiries under Inquiries Act 2005 are much the same.

Freedom of Information Act 2000: Kennedy

The question of the extent to which information can be compelled to be produced by a public body was considered by the Supreme Court recently in Kennedy v The Charity Commission [2014] UKSC 20 ( A journalist, Mr Kennedy, had asked under FOIA 2000 for information from the Charity Commission on George Galloway’s Miriam charity. His request had been refused. The Commission successfully argued – in that particular case – that their refusal was covered by the exemption in FOIA 2000 s 32(2).

The Supreme Court, in agreeing with the Charity Commission (on a 5-2 majority), considered fully the law on openness of public bodies; and, incidentally, the extent to which this was governed by the common law. European Convention 1950 law was only relevant where it diverges from domestic law (as eg in the case of privacy).

Judicial body: the ‘open justice principle’

There is no doubt that judicial processes must be open (subject to certain narrow exceptions: see eg Lord Toulson summarised his view of the law in this area at paras [110]-[140]. He and the court as a whole take their starting point from his judgement in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

Any secrecy by a court as to information held by it (the Guardian wanted to see papers read by a magistrates’ court district judge: and so they should said the Court of Appeal) must be justified either by statute, or – as in the Guardian case – by common law principles. Each case depends on its facts (Lord Toulson: para [113]); but denial of access must be justified:

[114] There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples.

If parliament is to make an exception to common law rules, especially in relation to a fundamental right, it must do so expressly and clearly (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33), as it has done in the case of children proceedings (Administration of Justice Act 1960 s 12; and see FOIA 2000 s 32, which exempts court records). If open justice is to be inhibited it must be by the common law or specific statutory exception.

But does this rule apply to inquiries? Lord Toulson considered the definition of ‘inquiry’ in FOIA 2000 s 32(4)(c) namely ‘(c) … any inquiry or hearing held under any provision contained in, or made under, an enactment’. This definition does not include a discretionary inquiry; but there is no reason why the law should treat disclosure in respect of such inquiries differently. So, said Lord Toulson, as far as inquiries are concerned:

[124] The considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi-judicial inquiries and hearings. How is an unenlightened public to have confidence that the responsibilities for conducting quasi-judicial inquiries are properly discharged?

Speaking for all his fellow Supreme Court Justice, he went on: ‘… information about statutory inquiries should be available to the public, unless there are reasons to the contrary’ (para [130]). Disclosure of information was determined entirely by the ‘public interest’:

[129] The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest. It is not therefore necessary to look for a particular statutory requirement of disclosure. Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry.

‘Process of the inquiry’: information as to expertise and impartiality

If challenged a judge must justify his/her ‘bias’, or possibility of partiality. Is anyone chairing or empanelled for an inquiry in any different position? The rule against bias is one of the cardinal rules of administrative, as it is of civil, law. A statutory panel member is required to be impartial. Inquiries Act 2005 s 9 imposes on the minister who appoints a statutory inquiry the following duty:

9 Requirement of impartiality

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a)a direct interest in the matters to which the inquiry relates, or

(b)a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.

A leading textbook in this area – Administrative Law (2009) Wade & Forsyth (10th Ed) – would say that this provision is redundant. It represents the common law. There is no reason therefore why a discretionary inquiry should not be the same as a judge, in terms of a minister being satisfied as to ‘bias’ in an inquiry panel member. It is for a minister to ‘satisfy’ him/herself on this account. There is plainly a public interest in knowing – by disclosure of information – that this has been done properly and on the basis of full information.

Much the same goes for a panel member’s ‘expertise’, and the public interest in knowledge on that score. Inquiries Act 2005 s 8(1)(a) states that, in appointment of a panel member, ‘the Minister must have regard—(a)to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry’.

Confidential information

Finally, to what extent can a minister claim ‘confidentiality’: that information about expertise and bias/impartiality is confidential? FOIA 2000 deals with the question:

41Information provided in confidence.

(1)Information is exempt information if—

(a)it was obtained by the public authority from any other person (including another public authority), and

(b)the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2)The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

It must always be recalled that confidentiality is a question for protecting the information of the confidor. By definition, in the case of panel member, the information is no longer private (ie belonging to the individual alone: here it has been passed to the minister). The information is available – or should be – to a Government department.

Open information as to bias

A judge whose bias – actual or ‘perceived’ – is challenged by a party to litigation must justify his/her lack of bias in open court, or must recuse /him/herself (ie take him/herself off the case; see eg Magill v Weeks (orse Porter v Magill) [2002] 2 AC 357, [2001] UKHL 67). Inquiries are judicial or semi-judicial in the same way as is the court process, so that information as to inquiries must be public (Kennedy at paras [124] and [130]: see above). There is no reason in principle why information as to a panel member should not be as open to the public as is a judge’s defence of any party’s challenge to his/her bias.


Fairness and family law reform

One of the very real difficulties in writing on consultation in the context of Sir James Munby is the unprincipled and autocratic way in which he administers the family court, and seeks – in effect – to legislate where he has no real delegated power so to do. So – as it seems to me – he has real difficulty in distinguishing between his judicial and his administrative capacities. He is a brilliant lawyer, a competent judge; but a breathless administrator with little co-ordinated long-term view of where he wants family law to go. (His thirteen fenestral musings do not forma clear family law philosophy or a view beyond the horizon, which is what family law now needs.)

Consultation is a term of art in administrative law and applies to Sir James as to any other administrator. This note can only consider the subject briefly, but its importance in the context of what is happening in family law reform cannot be overlooked. Whether six weeks or so in the summer is enough to comprise a proper consultation may have to be considered again later.

So yes, Sir James is but a civil servant in what follows. As an administrator I wonder whether he would be one to embrace the need for any form of self-denying ordnance as between his administrative law reform plans (as with the consultation documents under review in ), and his interpretative role as a judge? Does he warm, I wonder, to the words of Laws LJ, explaining separation of powers in a 21st century context (Sir James here is part of the ‘executive’), in R (Cart & Ors, on the application of) v The Upper Tribunal & Ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012 (

[37] The principle I have suggested has its genesis in the self-evident fact that legislation consists in texts. Often – and in every case of dispute or difficulty – the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter’s role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts’ application, and authoritative – accepted as the last word, subject only to any appeal. Only a court can fulfil the role.

Legitimate delegation of powers

Courts are governed by the common law and by statute; or by delegated legislation where statute permits. The main delegated legislation to which family courts are subject is Family Procedure Rules 2010 as defined by Courts Act 1973 s 75 and 76. But as a matter of common law these rules can do no more than define the way in which a court’s existing jurisdiction is operated. This was explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586:

[8] … rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628.

Consultations under way

Readers of my blog earlier today will recall that the consultation subjects are:

• Recently issued draft standard orders (mostly child abduction and other High Court orders): consultation response date is 3 October 2014.

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014): consultation by ‘end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’: response by 3 October 2014.

Of these the following points arise here: that the court has no power to issue any more than ‘draft’ orders is obvious. The Judiciary office is but another body – like any publisher – who can issue precedents for court orders. These have no magic. There is nothing in any legislation – primary or delegated – which prescribes a power to standardise orders.

Of transparency and ‘vulnerable witnesses’ (an inaccurate and partial definition: to be considered on another day): both of these are areas beset by common law and statutory principles (as explained in ). They cannot be legitimately changed by court rule, still less by practice direction or presidential ‘guidance’ save where there is specific legislation which permits such change. The President cannot legitimately alter the common law by his sole dictat. He can administer – as he did in the February ‘Guidance on Transparency’; or, as he did there also, he can persuade his judicial colleagues of his view of the common law.

What is now suggested in these two consultation areas – especially on ‘vulnerable witnesses’ – goes much further. And if the ‘vulnerable’ witnesses job is done properly primary legislation is likely to be needed (not just a rule change as seems the present plan – para 13(ii) of their present very light ‘proposals and interim report’).

Consultation in a legislative process

Recently Longmore LJ in the Court of Appeal in R (ota LH) v Shropshire Council [2014] EWCA Civ 404 has considered the meaning of consultation in the absence of any specific statutory duty:

Consultation on what?
[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.

This is an administrative exercise; and in acting as he the President is an administrator. He is part of the executive and subject to the constraints of any public body or civil servant to act ‘fairly’ (as Longmore LJ explains’).

Fairness is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054, where they adopt Lord Woolf (R v North & East Devon HA exp Coughlan [1999] EWCA 1871, [2001] QB 619):

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).

The consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I would suggest, dictates that he stand back and let someone else receive the consultation on transparency – his view is hardly objective – and let them put forward any legitimate law changes arising from it. The voice of Sir James is but one; not the only voice from which the consultees must persuade him of another course.

As to how a consultation is conducted, Sir James and his office are respectfully referred to the principles for guidance at updated to 5 November 2013. No period of time is recommended by the Guidance but the Cabinet Office does suggest that August should be ignored in computing the consultation period. So none of the periods above (on that basis) has yet started.


Consultation: the deluge and some dates

A few days ago I mentioned that there may be as many as five concurrent consultation exercises being undertaken in respect of the family courts ( ) , each – to a greater or lesser extent – at the behest of Sir James Munby President of the Family Division. It is not clear how he intends that any individual who is interested in the family courts should respond in time, especially if s/he would like to respond to the three awaiting responses.

Can such a hectic, and therefore superficial, consultation be in all reality a consultation; or is the consultation just a fig-leaf for what is, in reality, an administrative fait accompli? Anyone who is seriously concerned with family law reform is entitled to ask: is this consultation real, is it fair, and is it designed to achieve a democratic result?

Support for the fig-leaf theory includes:

• Response time is very short (mostly over August, when High Court judges and much of the bar who practice there are away). Two consultations end at the beginning of October, the other at the end of October.

• That when the Courts and Tribunals Judiciary office issued what Sir James – an autocratic law reformer, above all else – issued his ‘consultation’ entitled Consultation: Family Transparency – the next steps (19 August 2014) they (the judiciary office) described the paper as ‘proposals’. Proposals from a decision-maker are the antithesis of consultation. Is it a Freudian slip by the Judiciary office; or perhaps it hides the fact that Sir James’s ‘consultation’ is but a fig-leaf. It is not an auspicious start for a ‘consultation’.

Given the size of the Family Division and family court relative to other courts it does seem remarkable that there is so much – and such seemingly urgent – activity. Of the five outstanding consultation exercises in the Judiciary office, two relate to legal aid and the remainder to family courts. Why the rush, Sir James?

Of the five ‘consultations’ I referred to in three must be completed in October 2014. The President – perhaps another Freudian slip – does not thinks to tell consultees by when his consultation ends (normally almost a sine qua non for a consultation):

• For such draft standard orders as have been recently issued (mostly child abduction and other High Court orders) – the consultation response date is 3 October 2014 (a Friday, so no last minute work on answers over the week-end).

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014) if you ask Sir James’s office you may be told that there is no formal closing date on but that replies are requested ‘ideally by the end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ response is requested, again by 3 October 2014

Of the remaining areas of consultation: no dates seem to be fixed for further consultation or reply:

• Report of the Financial Remedies Working Group – 31 July 2014

• 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

Consultation is part of the administrative law concept of fairness, and is something which all administrators must follow. And in all this, it is important to recall that Sir James is not acting as a judge, but as a civil servant, a state apparatchik (and a powerful one). It is part of the democratisation of modern government and attracts special Cabinet Office guidance (see eg There follows, in a separate blog, a very short note on the law on consultation, administrative law and the need for fairness – and perhaps Presidential aloofness – in the consultative process.

‘TRANSPARENCY’: NOT ALL ABOUT CHILDREN: publicity after Cooper-Hohn

Case management, publicity and Cooper-Hohn v Hohn

The judgement of Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) raises important questions about publicity in financial remedy proceedings. The judge found herself required to give ‘a case management’ decision in a substantial money case where ‘accredited members of the press have been present, as they are fully entitled to be’ (FPR 2010 r 27.11(2)(f)). The question for her was: ‘[2].. the extent to which [the press] should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.’ The press were separately represented. Application was made for reporting restrictions to be lifted.

Roberts J refused to impose full reporting restrictions (as Mr Hohn wanted) but restricted the press, on terms which were less than Mrs Cooper-Hohn want, as follows (para 98 of her judgement):

The media shall be prohibited from publishing any such report that refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.

Roberts J describes her job (at para 61) on reporting restrictions as ‘to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap’. She concluded – looking at her decision through the prism of European Convention 1950 Art 8 (respect for private life) and 10 (press freedom); and perhaps Art 6(1) (right to a fair trial; administration of justice) – that she should make the restriction order (above). She resolved the parties and the press’s Convention rights as follows:

[176] I find that the balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, in so far as it relates to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, falls firmly in favour of privacy in relation to financial matters being maintained.

A guide through ‘rocky terrain’: start from the common law

This article attempts to provide a guide through the ‘rocky terrain’ – limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. I shall suggest here that the best starting point is the common law, as summarised most succinctly in Civil Procedure Rules 1998 r 39.2.

First it is important to be clear as to the threefold categorisation of family proceedings: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960 s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960 s 12(1) are likely to be rare in financial remedy proceedings.

The starting point is the common law rule that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished ‘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’ said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469. This position is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’. CPR 1998 r 39.2(1) asserts: ‘The general rule is that a hearing is to be in public’.

This ‘open justice principle’ and its place in the common law was explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

Family proceedings hearings ‘in private’

Confusion in proceedings covered by FPR 2010 arises from the fact that FPR 2010 r 27.10(1) asserts that all proceedings under FPR 2010 shall be held ‘in private’. This suggests that there is a presumption of privacy for family hearings. The common law and Convention jurisprudence provides the opposite. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies. Nor is it clear on what underlying legal principle, statute or common law, the rule-makers derive their rules on attendance at private hearings (FPR 2010 r 27.11), especially of the press (‘accredited representatives of news gathering and reporting organisations’: r 27.11(1)(f)).

If tested it seems unlikely that FPR 2010 rr 27.10 and 27.11 would be found to be intra vires any established principle of law or Convention principle. Convention jurisprudence which is the starting point for any restraint on publicity (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn at [23]). Of the status of rules as law: rules ‘cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised’ (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, per Buxton LJ at [8]).

When in contempt of court?

This note therefore proceeds on the basis that, other than in proceedings covered by AJA 1960 s 12, any restriction of publicity, whether as to attendance at a hearing or of the reporting of a hearing, must be justified in law. Exceptions set up by the common law relate to the hearing of proceedings and, separately, to the documents in those proceedings and their ‘use’. These exceptions are set out in CPR 1998 rr 39.2(3) and 31.22(1). The first rule provides that a hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (r 39.2(3)(a); see eg the Leveller Magazine case (above)); the case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (r 39.2(3)(c)) which might have applied in Cooper-Hohn); and ‘the court considers this to be necessary, in the interests of justice’ (r 39.2(3)(g)).

A separate jurisdiction also arises from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides ‘use’ questions and the publication of proceedings overlap. CPR 1998 r 31.22 provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

There is no equivalent to rr 39.2 or 31.22 in FPR 2010. The court has a separate power to restrict the use of parties’ names (CPR 1998 r 39.2(4) which was at issue in eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), Mostyn J.)

Publicity in financial remedy proceedings

Issues of publicity for a hearing or of documents therefore arise in financial remedy proceedings in the following contexts:

(1) Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
(2) Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
(3) Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
(4) Even if (3) applies, whether a party can be restrained from use of the document.

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

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

Reporting of hearings in open court

CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. A search of Family Law Online reveals references to the rule only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108; though in DE v AB [2014] EWCA Civ 1064 Ryder LJ dealt with privacy without any reference to r 39(3)). In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.

Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

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

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

In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are like to be resolved (see eg Allan v Clibbery) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)) as Mr Allan tried unsuccessfully to do.

Release of documents to a third party

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


A number of the principles which arise here – and which arose in the Cooper-Hohn interim hearing – cross over from (say) an initial application for a case to be in private (CPR 1998 r 39.2(3); ie to lift restrictions on publicity in financial remedy proceedings) to the separate question of whether the court gives permission for use of documents otherwise restricted from release by their having been disclosed but not referred to in court. The first point for any applicant under these areas of law is to be clear into which category of publication of a hearing or release of documents the application arises, and then to apply the principles outlined above to the application in question.