#CSAINQUIRY RIGHTS AND CHILD SEX ABUSE: PART 2

Questions, questions…

‘Right. Your questions: impartiality and bias; expertise of an inquiry member; and consultation of individuals interested in the proceedings and outcome of the inquiry?’

‘And the delay in setting up the inquiry,’ you reminded me.

‘Yup, and that.’

‘Well?’ Your anger had returned, tinged with impatience. ‘Any thoughts, or – better still – any answers on all this?’

‘I’ve got some thoughts. I can tell you a bit of law about it all. But we may be in legal uncharted waters with some of it. The common law cannot always give clear answers. Like life, the future cannot always be comfortably and clearly predicted – any more than a medic can always tell you the outcome of an operation.’

Impartiality and bias

I have already gone on a lot about ‘bias’ (https://dbfamilylaw.wordpress.com/2014/09/14/csainquiry-panel-expertise-and-bias/); and you’ll remember it’s one of the two fundamental aspects of a fair trial (the other is to hear both sides). At this point it is worth stressing the exact terms of European Convention 1950 Art 6(1):

In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

That the tribunal (ie the judge or the court) must be ‘impartial’ is there in clear words. ‘Bias’ means that you are not impartial. I am saying that an inquiry member is in no way different from a judge: the panel member must be entirely impartial (and this is stressed also by Inquiries Act 2005 s 9: quoted in blog 2014/09/11 below). A fair trial – and so too a fair inquiry – demands freedom from bias: ie complete impartiality.

And the need for an inquiry panel member to be impartial may go further: a judge works on the basis of the arguments put to the court. Normally, in English law, the judge does not go outside that. An inquiry must go further. It has an inquisitorial role. Literally, an inquiry inquires (https://dbfamilylaw.wordpress.com/2014/09/11/an-inquiry-inquires/). It must dig and look outside the evidence presented to it. Look at how Lord Justice Leveson (see below) dug around in the press inquiry.

If, for example, a panel member knows a person who should be inquired into it is always going to be much harder to press inquiries against them. A judge would automatically regard themselves as barred from a case if a colleague or friend or other associate were involved in a case (###). And for an inquiry panel member, I believe, the need for impartiality is greater even than for a judge.

A judge’s partiality in a case can be challenged in the course of the case or at a hearing. If an inquiry member is not frank about his/her suspected bias and the government ministry will not produce information, the only way for challenge to the panel member is by judicial review.

Expertise

Inquiries Act 2005 s 8(1)(a) requires that when a panel member is appointed, a minister ‘must have regard to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry’. I accept that, for the present this is a discretionary inquiry; but I believe say that much the same rules on expertise apply to a discretionary as to a statutory inquiry.

I don’t believe that Mrs Woolf has any expertise in the area of child sex abuse (and see https://dbfamilylaw.wordpress.com/2014/09/14/csainquiry-panel-expertise-and-bias/). As a lawyer her experience is separate from the field of children law and crime. Her forensic skills are not mentioned. We do not know what ‘expertise’ the Home Secretary perceives in her for the job. ‘Considered as a whole’, I would say the panel lacks forensic expertise to do the job.

Whether Mrs Woolf can realistically take it on with all her other duties: well that is another point which she must surely consider? She is a woman who accumulates honours: that is not what this job needs: it is an acute and inquiring mind. I have no reason to believe she has either.

Consultation of individuals concerned

Strictly speaking the law does not require Mrs May, the Home Secretary, to consult on her appointment of the inquiry panel. However the tendency of modern government and administration is to consult whenever reasonably possible. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 in the Court of Appeal Longmore LJ explained the position as follows:

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.

The point was discussed in last Friday’s legal aid case (19 September 2014: R (ota London Criminal Courts Solicitors Association and Criminal Law Solicitors Association) v The Lord Chancellor [2014] EWHC 3020 (Admin), Burnett J http://www.judiciary.gov.uk/wp-content/uploads/2014/09/the-queen-on-the-application-of-lccsa-clsa-v-the-lord-chancellor.pdf) where the judge set aside – ‘quashed’ – a decision by the Lord Chancellor on legal aid because the Lord Chancellor (ie the Ministry of Justice) had not consulted properly.

Mr Justice Burnett explained the ‘applicable legal principles’:

[34] There is no statutory duty to consult in connection with legal aid changes but a long-standing practice of doing so…. The Courts have considered procedural fairness in the context of the adequacy of a consultation process on countless occasions. The decision in each of those cases is highly fact and context sensitive: see R (Easyjet Airline Co Ltd) v Civil Aviation Authority [2009] EWCA Civ 1361 per Dyson LJ at [51]. In R v Secretary of State for Education ex p M [1996] ELR 162 at 206 – 207, Simon Brown LJ cautioned against applying a mechanistic approach to what was required in a consultation exercise. The essential features of an adequate consultation exercise were summarised by Lord Woolf MR [108] and [112] of the judgment of the Court of Appeal in: R v North and East Devon Health Authority exp Coughlan [2001] QB 213, [1999] EWCA 1871.

The judge then quoted these passages, in particular the following:

[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).

How does this apply to inquiries? The position is much less clear. There is a survivor’s group and some highly articulate members. I can see that they could be consulted on terms of reference for the inquiry; and there are plenty of reasons why they should be.

Whether, though interested parties, survivors can expect to be consulted on membership of a panel seems to me more doubtful. It is one thing to challenge the judge in a case because of bias. To assert positively who should be the judge – ie choose your judge – is quite another matter. An inquiry panel is not the same as a judge; but I can that this question presents problems.

‘Within a reasonable time’

One of the most difficult things in answering questions about inquires is that I have to keep reminding myself that we are not talking about court proceedings, but about a different form of hearing. There are similarities; but there are important differences. So it is with delay. European Convention 1950 Art 6(1) is the starting point for a fair trial (as mentioned above); and that requires trial ‘within a reasonable time’. Children Act 1989 s 1(3) assumes that delay will be prejudicial to a child’s welfare.

Given the urgency of the issues and that they must be the subject of inquiry and recommendation as soon as possible, it is reprehensible that it has taken over two months for the Home Secretary to have appointed two chairs to the inquiry – one of whom has resigned, and the other of whom is subject to serious allegations of bias (and has taken over two weeks to date for her to write a letter explaining these allegations).

If prejudice to those who are the subject of the inquiry – the survivors and children still affected – can be shown to be suffering, this would seem to be a reason to press the Home Secretary for answers urgently and for promptness in progress with the inquiry. It is worth noting that the events which lead to the Leveson inquiry on the press (http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/) occurred in July 2011. Lord Justice Leveson opened inquiry hearings on 14 November 2011. He was concerned to establish ‘who guards the guardians?’ (ie the press). We are the guardians of our children: similar urgency may reasonably be expected of a child sex abuse inquiry. Lord Justice Leveson published his Report on Part 1 of the Inquiry on 29 November 2012 (a year after starting work) after he had heard evidence from a wide range of witnesses, including newspaper reporters, management, proprietors, police officers and politicians of all parties, all of whom gave evidence to the inquiry under oath and in public. This timing and format could be said to provide a precedent.

‘So there are no clear answers to a lot of this I’m afraid; though I am clear that the Home Secretary must say what she knows of Mrs Woolf’s bias. And I doubt that Mrs Woolf has anything like the expertise or experience to do the job she has agreed to take on.’

You were frowning. I sensed you were unimpressed by my answers. ‘But, what if…’

#CSAINQUIRY: CONSULTATION AND THE HOME SECRETARY

Ministerial consultation

 

It had been niggling away at me over the week-end and as the writhing form of the intended #CSA Inquiry has unfolded over the past three or four days: does the Home Secretary have any duty to consult with survivors when she sets up her inquiry (in whatever legal format that may ultimately be). Any wind in my sails may have been taken away a little, by the fact that it was reported on 21 July 2014 – how reliably, I do not know – that she had already promised to ‘consult’. I doubt she has, in fact done so, so far as appointment of Lady Woolf as chair is concerned; and if she has done so, probably not in any realistic way.

 

So is there any duty upon her to consult? On a brief reading (so far) I have found no decision on the point in relation to a discretionary inquiry (ie as distinct from a statutory inquiry under Inquiries Act 2005). By definition this is an area very much within ministerial control. However courtesy and the feelings of a number of those involved – the survivors – might have dictated some form of consultation. And, it seems, she promised she would consult. Hers is an administrative decision. It is therefore susceptible to ordinary administrative law: judicial review and so on.

 

Duty to consult and the common law

 

Strictly speaking the common law does not require her to consult. However, the tendency of modern government and administration is to do so whenever reasonably possible. The Court of Appeal has considered the point in the last few months. (This was in relation to the closing of a local authority run home; but the principles are broadly the same.) In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 (http://www.bailii.org/ew/cases/EWCA/Civ/2014/404.html) Lord Justice Longmore explained the position as follows:

 

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.

 

‘Fairness in consultation’

 

The role of fairness in consultation is stressed by the leading judicial review text-book by reference to another case, R v North & East Devon HA exp Coughlan [1999] EWCA 1871: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html ) where the Master of the Rolls Lord Woolf said:

 

[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.

 

It would always have been courteous of Mrs May to consult, I should have thought. If nothing else it is a modern approach to administrative decisions. If she does not do so on that ground alone there is probably little that those affected can do to challenge her failure.

 

Was consultation promised?

 

If she has indeed promised consultation, that may raise different issues about her decision-making and whether Home Office procedures can be reviewed. Lord Woolf said (as quoted above) that if consultation ‘is embarked upon it must be carried out properly’. Was consultation promised? Might it reasonably be expected? What form should consultation on the panel and its terms of reference take then?

 

Alongside questions about the ‘impartiality’ of her chair, Mrs May might reasonably be expected, please, to answer those three questions.

CHILD ABUSE: INQUIRY AND REFORM

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

 

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

 

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

 

Proposals and initial recommendations

 

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

 

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

 

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

 

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

 

Protected individuals in civil proceedings

 

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

 

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

 

Information from protected individuals

 

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

 

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

 

Protection for whom?

 

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

 

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

 

Protected individuals: context of their information and evidence

 

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

 

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

 

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

 

Child protection inquiry and reform

 

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

CONSULTATION: SIR JAMES IS BUT ONE VOICE…

‘Guidance’: not consultation by a public body

 

Funny thing that: there’s me sounding off last week (see eg http://wp.me/p4jaDx-62) about the general need – as opposed to a specific requirement – for the President of the Family Division to consult on new ideas, whether as administrator or as chairman of Family Procedure Rules 2010. When I raise with his office the question of dates for consultation (suggesting that not a lot of time is being left between now and early October 2014 to ‘consult’) I am told (by email dated 26 August 2014):

 

As far as the guidance … goes, I should point out that this is not a consultation by a government department, and indeed, the President is under no obligation to consult at all. However he remains anxious to hear any views on all these important topics and as stated above we are happy to receive responses at any point.

 

The ‘guidance’ relates to ‘transparency’. At short notice Sir James Munby P issued Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014. A further document entitled Consultation: Family Transparency – the next steps (19 August 2014) (consultation due by ‘end of October [2014] at the latest’) has been issued by the Judicial and Tribunals Office (http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ ). The document is unquestionably entitled ‘Consultation’.

 

I yield to none in my admiration for Sir James’s energy and determination. He is in a very powerful position, as the family court hierarchy stands, to change practice. He is no a natural democrat; and I doubt he distinguishes his judicial and his administrative roles clearly or at all. Much of what is going on in and around his office is now administrative and should not be run by just one person.

 

When the Civil Procedure Rules 1998 and the ancillary relief pilot scheme were being introduced the then Lord Chancellor, Lord McKay, took a close interest in them (as he did in the Children Act 1989 ten years earlier). But he knew his limits as an administrator and listened to people (as I know personally from when he asked me to go to see him about the then ancillary relief ‘pilot scheme’ in late 1997). The present Minister of Justice would not understand the need for consultation (unless it was explained to him); but his civil servants, including Sir James, know the difference. Indeed Sir James himself stressed the court’s public authority role as defined by Human Rights Act 1998 s 6(1) (not directly in relation to administrator consultation) in the very recent Q v Q (No 2) [2014] EWFC 31:

 

[46] … The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention….

 

Consultation and the common law

 

Strictly speaking the common law does not require Sir James to consult. As far as the point goes, his office is correct, despite the title of his paper. However the tendency of modern government and administration is to consult whenever reasonably possible. The Court of Appeal have recently considered the point. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 Longmore LJ explained the position as follows:

 

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.

 

In putting forward ‘Guidance’ Sir James is not acting as a judge – judges judge. It is an administrative exercise which he undertakes in an office which – like that of Lord McKay LC – is that of an administrator. He is subject to the constraints of any public body or civil servant and required to act ‘fairly’ (ie not autocratically).

 

‘Fairness in consultation’

 

The role of fairness in consultation is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054. De Smith adopts the terminology of Lord Woolf in R v North & East Devon HA exp Coughlan [1999] EWCA 1871:

 

[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 ‘guidance’ 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 respectfully suggest, reasonably requires that he stand back and let someone else receive the consultation on transparency and let them put forward any legitimate law changes, or guidance, arising from it. The voice of Sir James should please be but one; not the only voice from which the consultees must persuade him of another course.

CONSULTATION: FAIRNESS, LAW AND THE ADMINISTRATIVE PROCESS

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 http://wp.me/p4jaDx-61 ), 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 (http://www.bailii.org/ew/cases/EWHC/Admin/2009/3052.html):

[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 http://wp.me/p4jaDx-60 ). 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 https://www.gov.uk/government/publications/consultation-principles-guidance 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.

FAMILY COURT CONSULTATION: FIG-LEAVES AND FREUDIAN SLIPS

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 (http://wp.me/p4jaDx-5Y ) , 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) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ 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 http://wp.me/p4jaDx-5Y 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) – http://www.judiciary.gov.uk/publications/high-court-family-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) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ 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’ 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/ 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 http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF

• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

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 https://www.gov.uk/government/publications/consultation-principles-guidance). 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.

CONSULTATIONS IN PROGRESS PER PRESIDENT’S 13TH FENESTRAL MUSING

Family procedure: consultation under way

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

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

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

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

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

Protected witnesses: breadth of reform

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

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

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

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