Help for vulnerable witnesses and children in court proceedings

The BBC reported on Wednesday  that there is a shortage of intermediaries for help of vulnerable witnesses ‘to give evidence to police and court’; and that some intermediaries are refusing to help because of late payment by the police.

 

In criminal proceedings – not yet in family or other civil proceedings – the court can order ‘special measures’ for a child or vulnerable witness (eg someone suffering from mental incapacity, or scared of facing their alleged abuser). This can include having their evidence pre-recorded or having someone with them in court to help with deafness or other communication difficulties (‘an intermediary’). These have been in place – or intended to be in place – for criminal proceedings since 1999.

 

Even this assistance for children, parties and witnesses has not been available in family proceedings – domestic violence, child abuse, or communication difficulties (eg deafness), unless a witness brings their own help. Any payment for help will come from the child or vulnerable person (unless they have legal aid).

 

Since November 2017, a scheme for ‘intermediaries’ has been introduced by court rule. It applies to adults only. The new rule says in terms it will not be paid for by Ministry of Justice; though help is paid for in criminal proceedings. That is the case even if they are suffering from incapacity or have been abused by a former partner.

 

And what about children in family proceedings? Nobody knows (though ‘children’s views’ are part of the EU Charter proposed to be scrapped under Brexit). Recommendations were made in early 2015 by a committee chaired by two judges. This was for a scheme similar to criminal proceedings. Three years later and the Ministry of Justice is still silent on reforms for children…

 

Thoughts for a fair family court

A letter from Philip Marshall QC

 

Philip Marshall QC, chair of FLBA, comments at http://flba.co.uk/blog/2016/10/07/flbmail-5-oct-2016/ on the recent ‘Fifteenth view’ of Sir James Munby, President of the Family Division (see eg http://flba.co.uk/downloads/ms_13993.pdf). The president’s short opening paragraph includes: ‘The fact is that we are approaching a crisis for which we are ill-prepared and where there is no clear strategy to manage the crisis.’

 

Philip’s comment on this diagnosis includes:

 

‘We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.’

 

I agree. Fairness – or justice – within the family courts (Family Division and Family Court) must remain an absolute. Justice in a ‘reasonable time’ (European Convention 1950 Art 6(1)) and that if resolution is delayed in children cases is generally to a child’s detriment (Children Act 1989 s 1(2)) must both remain part of the overriding objective of family law. But they are meaningless unless accompanied by real time-saving procedural proposals.

 

Case management: the key to saving time

 

Case management is the key; and Sir James is in a unique position to influence that, for he is both administrator and judge (a constitutional anomaly: both executive and judiciary; but for the present that is not an immediate concern). Other principles for avoidance of delay without sacrifice of fairness can also be identified. A few thoughts follow. Mostly these boil down to judges following the rules and law already there (or – as often happens – being urged by Sir James and the Court of Appeal so to do):

 

  • Case management – This is critical: interventionist, firm, ‘robust’ (the modern cliché) – call it what you will. The judge can control progress of a case in a variety of ways, so long as fairness is not lost and judicial continuity is retained. (A commercial plug: I deal with this extensively in Evidence in family proceedings shortly due for publication by Family Law/LexisNexis). Proportionality must rule.

 

  • Definition of issues for trial in a case – The most important case management question is to define the issues before the court so that everyone knows what remains to be contested and the evidence fairly required to deal with it.

 

  • Relevance of evidence – The rule is that only evidence relevant to an issue is admissible; so judges (eg as part of case management) can firmly exclude what is not relevant to a clearly defined issue before the court.

 

  • Legal representation – Legal representation can increase fairness, and – if self-control is exercised by family lawyers – it can save the court time. It should also promote settlement or definition of issues and pruning of irrelevant evidence.

 

  • Mediation and settlement conferences – Mediation (Philip comments on settlement conferences in his letter) so obviously can save court time: where cases are settled (and many do if parties want them to); or if issues are narrowed by mediators. Mediation can only work properly if it remains voluntary; but judges can urge it upon parties.

 

And clarity: perhaps I am biased; but I also believe that a much clearer and better expressed version of our law – statute and rules – could save time. Less time would be spent getting it wrong, or on appeal to the Court of Appeal to explain unclear law. And clarity would certainly promote justice.

 

There is no magic in any of the thoughts above. All are there in the rules already. Fairness cannot be sacrificed by family courts on the altar of pressure of time; just as health should not be sacrificed to pressure of resources. That said, realities must be faced by all of us involved in family courts process.

A FAMILY COURT FOR THE FUTURE

Sir James Munby and plans for family courts reform

 

Sir James Munby, President of the Family Division, has courted some controversy – and beyond family law legal circles – with his announcement, at a bar lawyer’s dinner at Middle Temple Hall on 26 February 2016, of the next phase of his reform plans for family courts (http://www.familylaw.co.uk/system/froala_assets/documents/471/munby-president-speech-family-law-bar-association-flba-2016.pdf). Continued reforms are needed. This note summarises the President’s ideas, and proposes other priorities for family law.

 

Sir James outlined his plans in four main areas. First he emphasised his concern for children’s involvement in the court process: both as to their ‘jig-saw’ identification where law reports about their family have been published in his push for ‘transparency’; and also as to how they might be involved in the process itself. He highlighted the fact that the proposed reforms for vulnerable individuals in family proceedings – joined with proposals for children’s involvement in proceedings – are stalled on a spoke of ‘decisions by officials and ministers on various funding and other resources issues’.

 

Secondly, there is a real need – for litigants in person and parties generally – for administrators (which includes the President) to ‘strive constantly to improve, to streamline and to simplify the system’. To emphasise this point he says ‘we need an entirely new set of rules’. The present rules are ‘fit only for the bon fire’, he say (he seems to overlook that Family Procedure Rules Committee is responsible for drafting the rules, and is chaired by him, though its minutes show he rarely attends the Committee’s meetings).

 

‘Settlement conferences’ – broadly formal attempts at in-court mediation – are to be developed for children proceedings (many would say, not before time). And then judges might become involved at a ‘pre-proceedings’ stage. Will judges become social workers and attend case conferences? I wonder how many of Sir James’s fellow judges were involved in a discussion of that idea?

 

Finally, what is the ‘function and purpose of the family courts’? Sir James answers the ‘function’ question by saying the court must move to a digital future with much of its work being done on-line and thus outside the court arena. Part of this would be re-writing of the rules – so far as ‘we still need them’ – in ‘plain English’. But of ‘purpose’: save for judges involved at a ‘pre-proceedings’ stage, Sir James says little; and I must touch on this below.

 

A family court for the 21st century

 

If I had been drafting Sir James’s speech I would have included: mediation; the purpose of a family court; clarity of drafting; dealing with children and vulnerable individuals; and IT.

 

Mediation, as a topic, does not feature in Sir James’s speech; yet as a priority over litigation, or as a parallel means of resolving disputes by agreement, mediation is essential to any contested process of family breakdown. It must be a firm part of any family law reform process.

 

The first purpose of courts is adjudication on contested issues: without an issue there would be no need to go to court (except the administrative throw back in family courts of divorce). Thus, where mediation leaves unresolved issues, the court will be involved in adjudication on facts or law or both; but it is important to be clear (1) that that is what judges do; and (2) that they only become involved when someone – an applicant – asks them; not, for example, as part of some social work, or other therapeutic, process relating to children or separating couples.

 

A fair means of adjudication which is accessible must be the first purpose of a court system. This demands clarity in law drafting. Procedural rules must be developed which can be understood by any averagely intelligent lay person; though the law can be complex and cannot always be reduced to a lowest common denominator linguistic factor. Judges, like Sir James, must always recall that rules are there as much to regulate judges and case management as to regulate the way that the parties’ dispute proceeds to judgment. Rules will always be an essential component of fairness and of the rule of law.

 

Vulnerable individuals and hearing children are two separate aspects of reform, but are coupled here for economy of space. Some effective rules must be developed (family law is 16 years behind criminal law); but the present draft (Family Procedure Rules (Amendment No X) 2015 https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) must be clearer. For its main consumers (children and abused individuals) it will be a poor advertisement for clarity in law drafting. What are they to make of, for example, ‘special measures’ which apply to them where their evidence may be ‘diminished’? If they understand what that means, how then are they to secure payment for the measures?

 

Many ideas are at large for involving information technology in forms of court process. What has happened to the online dispute resolution (‘ODR’) report (https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/) of February 2015? ODR ideas need development within the family courts system. Their importance for mediation and resolution of disputes cannot be put too high. But the role for personal involvement – especially in family breakdown – remains. Technology cannot replace individual mediators, legal advice and the role of judges where discretion and legal principle must be balanced.

#LEGAL AID: COMMITTAL PROCEEDINGS IN THE FAMILY COURTS

The two cases considered here say as much about the obscurity – even the injustice of that obscurity – of legal aid provision, as they do about grant of legal aid for committal applications in civil (including family) proceedings. Different applications must be made according to what civil court you are in (High Court and Court of Appeal on the one hand, or County Court or Family Court on the other). And to make the whole thing more obscure still application is based on criminal legal aid principles and regulations.

In family proceedings in the Family Court and for civil proceedings in the County Court the court itself has no power to grant legal aid for committal proceedings for disobedience of a court order. By contrast the High Court (including the Family Division) and the Court of Appeal has such power. The legal aid provisions which give rise to this confused state of affairs was considered fully by McCombe LJ in Brown v London Borough of Haringey [2015] EWCA Civ 483 (especially at [26] to [36] – http://www.bailii.org/ew/cases/EWCA/Civ/2015/483.html ). I am afraid that if application is to be made, and if it is necessary to refer a Legal Aid Agency (‘LAA’) decision-maker to law, there will be no substitute for referring in full to those paras [26] to [36], so I will not burden this note by quoting them.

Committal proceedings in the civil and family jurisdictions are treated as criminal proceedings (Benham v United Kingdom [1996] 22 EHRR 293 at 324; Hammerton v Hammerton [2007] EWCA Civ 248 at [9]; King’s Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB) at [16]. European Convention 1950 Art 6(3)(c) guarantees entitlement to legal aid where an individual is charged with a criminal offence and the interests of justice require. Application may have to be a firm with a criminal contract (this is not entirely clear from the reports); and must be on criminal legal aid forms (suitably amended, if need be).

In the County Court and Family Court application is to the Director of Case Work at the Legal Aid Agency (‘LAA’) (Brown v London Borough of Haringey [2015] EWCA Civ 483 at [35]), not – as in the case of the High Court and Court of Appeal – to the court itself.

King’s Lynn v Bunning (alleged contempt of a possession order) was proceedings in the High Court and Blake J was able, after consideration of the relevant ‘obscure’ legal aid provisions, to find that he could make an order of grant of legal aid in that Court (at [9]). Brown v Haringey, by contrast, was a case which proceeded in the County Court. The Court of Appeal considered that the County Court (and the same reasoning would apply to the Family Court, because of the lack of specific statutory provision) could not make a legal aid order. By deduction, said McCombe LJ, probably such a grant of legal aid could only be made by the LAA (at [35]). No means assessment was required (King’s Lynn v Bunning at [31]).

The conclusion that application in the County Court must be to the LAA office was reached deductively by McCombe LJ by reference to a variety of provisions which enabled him – finally, and with considerable reliance on the earlier Kyng’s Lynn case – to conclude that the High Court and Court of Appeal could grant legal aid (para [34]). In the absence of the County Court having express power to grant (and the same would apply to the Family Court) then, he concluded, LASPOA 2012 s 18 left it to the LAA Director of Case Work to grant.

For family proceedings this then leaves Re Ramet (application for the committal to prison) [2014] EWHC 56 (Fam), where Sir James Munby P – sitting in the High Court – granted legal aid himself, by reference to the criminal legal aid scheme and to King’s Lynn v Bunning (paras [32] and [33]) but without distinguishing, as does Brown v Haringey between proceedings in the High Court (including the Family Division) or in the County Court or Family Court (though in the particular case it was not necessary for him to do so). Ramet represents the law for family proceedings in the High Court but must give way to Brown, for proceedings in the Family Court.

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

The ununified family court

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

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

A unified family court

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

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

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

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

A new family law procedural dawn

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

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

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

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

WARDSHIP

Powers of the local authority to apply to the High Court

 

Wardship has been in the news in the last few days (Mr and Mrs King and their child Aysha: wardship proceedings are still continuing, so what is said here does not relate directly to those proceedings). Two questions arise: what is the power of the High Court to exercise its inherent wardship jurisdiction over children; and can a local authority use the High Court’s to make a child a ward.

 

In general the High Court has more or less infinite powers to exercise an inherent and protective jurisdiction over children. It is only the High Court which has power to deal with wardship (Senior Courts Act 1981 s 41(1)), not eg the ‘single’ family court. If it does so, the usual result will be that a child becomes a ward of court. The High Court then stands in the position of a child’s parents; but the court must ensure that someone makes practical day-to-care arrangements for the child’s care, board and lodging, and so on.

 

If the jurisdiction of any family court to take a child into care is to be invoked by a local authority it must be by care proceedings (Children Act 1989 Part 4) save in a very narrow range of cases sanctioned by CA 1989 s 100. (Section 100 was included in the CA 1989 since, till that Act, local authorities had been using wardship, in many cases, to obtain care orders.)

 

CA 1989 s 100 says that the court’s inherent jurisdiction (‘wardship’ and ‘inherent jurisdiction’ tend to be used interchangeably) cannot be used, in effect, to place a child in the care of a local authority (s 100(2)), unless the court gives the local authority permission (s 100(3)). The court may not give permission, till it finds (1) that, but for an order, the child is likely to suffer significant harm (s 100(4)(b)), and (2) that there is no other order the local authority can apply for (a 100(4)(a) and (5)).

 

Local authorities and wardship

 

Children Act 1989 s 100 provides as follows:

 

100 Restrictions on use of wardship jurisdiction

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children –

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3) No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied that –

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5) This subsection applies to any order –

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

 

In Re A (Children) [2013] UKSC 60 – http://www.bailii.org/uk/cases/UKSC/2013/60.html ; in the Supreme Court Lady Hale (also, as Brenda Hoggett, a main architect of the Children Act 1989) explained the wardship jurisdiction of the High Court. Re A related to a child born in Pakistan, the brother of children with dual British and Pakistani nationality. The question was whether he could be made a ward of the English court. The Supreme Court said that in principle he could be made a ward.

 

Lady Hale explained the inherent jurisdiction of the High Court by reference to ‘common law rules’ and that, in the case of a child who is a British national, the ‘Crown had a protective or parens patriae jurisdiction over the child wherever he was’. She cites Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328, at 344-345, and Lord Denning MR in Re P (GE) (An Infant) [1965] Ch 568, in support of her proposition. The fact that a child is a British national enables the court’s jurisdiction to be called upon to protect a child.

 

The position described by Lady Hale remains the common law position still, unless Parliament says otherwise and by statute restricts the jurisdiction of the High Court. In the case of any application by a local authority to invoke the inherent jurisdiction of the High Court to protect children, Parliament has imposed restrictions in Children Act 1989 s 100 (as above). And if application is made to the court to make a child a ward, the effect is immediate. On filing the application the child becomes a ward (Senior Courts Act 1981 41(2)); and remains so till the court makes a further order (provided this is dealt with within three weeks).

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: 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.

‘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)).

Conclusion

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.

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 .