Justice: how open in family proceedings?

‘Advocacy assistance’ and open justice

 

When the Government proposals come on stream – as surely they will, eventually – for instruction of a court advocate to cross-examine a domestic violence complainant (‘advocacy assistance’) where her alleged abuser acts in person, the question of whether the hearings in question are secret (also called ‘confidential’), private or in open court will revive. The media surely will want to see how the new scheme – which had such publicity earlier in the year (see eg Observer/Guardian of 12 February 2017) – is working.

 

The Family Procedure Rules Committee has defined all proceedings covered by the rules for which they are responsible – Family Procedure Rules 2010 (FPR 2010) – as to be heard in ‘private’ (FPR 2010 r 27.10), save where otherwise indicated. The term ‘private’ is not defined. Plainly it is something different from ‘open court’; but does it mean entirely secret, or confidential (see Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261 sub nom Clibbery v Allan [2002] 1 FLR 565), or does it mean only that public may be admitted if the court agrees. And if so, are the parties to remain anonymous; is the judgment public; and can anyone see any of the documents generated by the proceedings?

 

Open justice principle in civil and criminal proceedings

 

Much of a definition of ‘private’ turns on application of the open justice principle to a variety of different family proceedings; but it is worth being clear at the outset that this principle applies to procedural issues in family as it does in all court proceedings, including, for example:

 

  • Non-parties being able to read hearing documents (as was the case in Guardian v Westminster (below); and by ‘hearing documents’ is meant those read by the judge in connection with the case: eg skeleton arguments, filed statements etc: per Lord Bingham in Smithkline Beecham v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 per Lord Bingham CJ);
  • Restrictions on release of disclosed documents (‘the implied undertaking’, Riddick v Thames Board Mills [1971] 1 QB 881, CA; and CPR 1998 r 31.22);
  • Publicity or not, for the names of parties (see eg PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251);
  • Publication of the court’s judgement, anonymised or not (Norman v Norman [2017] EWCA Civ 49)
  • Anonymity for children in public proceedings (JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96, [2015] 1 WLR 3647);
  • Anonymity of witnesses, expert witnesses etc (Attorney General v Leveller Magazine Ltd[1979] AC 440; Khuja (below);
  • The Art 8 rights of children balanced against those (Art 10 and Human Rights Act 1998 s 12(4)) of the press (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591; PJS (above)).

 

Space does not permit that all of these subjects be covered here; but the same principles recur. For example in PJS Lady Hale made comments on the importance of consideration of the Art 8 rights of children affected, where publicity is concerned; and Guardian v Westminster (above) dealt with whether the Guardian – after the hearing of an extradition case – could see papers read by the court (yes they could). Neither case was directly concerned with whether anyone could attend a hearing in open court.

 

The Humpty-Dumpty question: open court, private or secret

 

The issues raised by this article require a return to what is meant by (1) ‘open court’, (2) ‘private’ (or ‘chambers’) hearings and (3) secret hearings (formerly called ‘in camera’). This is territory tramped over by a variety case law and statutory feet (and see Dame Elizabeth Butler-Sloss P and Humpty Dumpty (below)); but the starting point is the common law. This was recently explained by Lord Sumption (with whom his four Supreme Court justice colleagues agreed) in Khuja v Times Newspapers Ltd [2017] UKSC 49:

 

[12] With limited exceptions, the English courts administer judgment in public, at hearings which anyone may attend within the limits of the court’s capacity and which the press may report. In the leading case, Scott v Scott [1913] AC 417, public hearings were described by Lord Loreburn (p 445) as the ‘inveterate rule’ and the historical record bears this out. In the common law courts the practice can be dated back to the origins of the court system.

 

It is the ‘limited’ exceptions with which this article is concerned; for the ‘open justice principle’ (as Toulson LJ defined it in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343) probably runs parallel with the origins and history of the court system itself.

 

In Scott (a nullity case which should have been heard in open court) Earl Loreburn dealt with the main exceptions to the open justice principle as follows (at [1913] AC 417 at 445:

 

I cannot think that the High Court has an unqualified power in its discretion to hear civil proceedings with closed doors. The inveterate rule is that justice shall be administered in open Court. I do not speak of the parental jurisdiction regarding lunatics or wards of Court, or of what may be done in chambers, which is a distinct and by no means short subject, or of special statutory restrictions. I speak of the trial of actions including petitions for divorce or nullity in the High Court…

 

He added, as did other of their lordships, where ‘the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed’. To deny this might be to deny justice: ‘an aggrieved person, entitled to protection against one man who had stolen his secret, would not ask for it on the terms that the secret was to be communicated to all the world. There would be in effect a denial of justice.’

 

The ‘parental jurisdiction’, which subsists in proceedings under Children Act 1989 and in many cases in the Court of Protection (though open court principles are being developed there) – that is, Lord Sumption’s ‘exceptions’ – was explained by Viscount Haldane LC (at 437) as follows:

 

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

 

He went on to deal with the ‘secret process’ point, and concluded:

 

… As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

 

The modern law

 

Starting from the open justice principle, as stated in Scott and reaffirmed countless times since then, what may be said to be the modern exceptions.

 

In criminal proceedings the principle in relation to freedom of expression (European Convention 1950 Art 10) has been held to override the interests of a child’s right to protection of family life (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591; R (Trinity Mirror) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770).

 

In civil proceedings generally Administration of Justice Act 1960 s 12 provides that just because a court is sitting in private does not mean that publicity will be a contempt of court except in the case of a list in s 12(1). These would have been recognised by their lordships in Scott (subject to addition of national security (which might have occurred to them in 1914, the year after Scott was decided) and of modern statutory references). The list in s 12(1) is as follows:

 

(a)where the proceedings—

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

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

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

(b)where the proceedings are brought under the Mental Capacity Act 2005…;

(c)where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d)where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e)where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

 

CPR 1998 r 39.2(3) provides a similar list to which only are added (c), (e) and (f) (below):

 

(3) A hearing, or any part of it, may be in private if –

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

(b)it involves matters relating to national security;

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

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

(e)it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f)it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

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

 

For family proceedings covered by Family Procedure Rules 2010, the rules committee have asserted, somewhat inscrutably:

 

27.10 Hearings in private

(1)   Proceedings to which these rules apply will be held in private, except –

(a)where these rules or any other enactment provide otherwise;

(b)subject to any enactment, where the court directs otherwise.

(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.

 

Neither this rule, nor either of s 12(1) or r 39.2(3) (nor CPR 1998 as a whole) defines what is meant by ‘private’, save to say that the public have no right to be present (as distinct from, presumably, the right to ask to be present?). The rule must also be read subject to the right of ‘accredited representatives’ of the press and other media and others, with permission, to be in court for private hearings (r 27.11(2)(f) and (g)).

 

The question remains: is there any law on what is meant by ‘private’; and if so can the rules committee override that law? The seeker for an answer to that question goes back, again, to the common law.

 

Meaning of ‘private’

 

As the then new CPR 1998 (in accordance with Civil Procedure Act 1997) were approaching a final draft, the committee chairman, Lord Woolf MR (with Aldous and Chadwick LJJ: it was a judgement of the court) considered the meaning of open court and ‘chambers’ hearings in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 (judgment: 12 February 1998). The court’s conclusion was that it was open to a party to publish what was said in chambers (ie ‘in private’: see 1070) unless the case comes within those listed in s 12(1).

 

Proceedings excluded from publication (AJA 1960 s 12(1)) are described as ‘secret’ (emphases supplied by the judges):

 

As [AJA 1960 s 12(1)] makes clear, the publication of information relating to proceedings held in private (i.e. chambers) is not in itself contempt except in the specific cases identified in s 12(1) (which do not apply here) unless the court makes an order prohibiting publication when it has “power to do so” (s 12(1)(e)). Nor is the publication of the whole or part of the order made by a court sitting in private a contempt (s 12(2)). The general position is that any judgment including a judgment in chambers is normally a public document….

A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in Scott v. Scott   [1913] AC 417 or the court sits in chambers and the case falls in the categories specified in section 12(1) of the Act of 1960 (which include issues involving children, national security, secret processes and the like). Section 12(1) also refers to the court having prohibited publication. Such proceedings are appropriately described as secret; proceedings in chambers otherwise are not appropriately so described.

 

As can be seen the Court of Appeal distinguishes between hearings ‘in private’ (or in chambers) where information can be published and the public may be admitted; and hearings ‘in secret’ (formerly in camera) which are those to which the exceptions in Scott and s 12(1) apply.

 

Allan v Clibbery: ‘private’ and Family Law Act 1996 Part 4

 

What are ‘chambers’ (ie ‘private’) hearings? Of chambers hearings the Court of Appeal in Hodgson said (at 1072):

 

In relation to hearings in chambers … The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available but, if requested, permission should be granted to attend when and to the extent that this is practical.

 

And this is what r 27.10(2) appears, almost exactly, to say: ‘no right to be present’; and, as will be seen, this is the formula preferred by Dame Elizabeth Butler-Sloss P in a later constitution of the Court of Appeal (Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261 sub nom Clibbery v Allan [2002] 1 FLR 565).

 

Allan v Clibbery (above) remains the main source for family lawyers considering open justice and the principles on which it is based. It is also of relevance to the question of press attendance at hearings of, or publicity arising from, cases under Family Law Act 1996 Pt 4 (which include Allan v Clibbery itself and the cases of alleged abusers cross-examining complainants in person). It was a case under Pt 4, where Ms Clibbery published information and documents arising from the case to, amongst others, the Daily Mail. On appeal from Munby J, the Court of Appeal agreed with him in the result and held that she could publicise information and certain documents from the proceedings; though the proceedings should have been held, on Dame Elizabeth’s definition, ‘in private’.

 

There is no reason which that definition should not be the same in FPR 2010; so that the exception occurs for ‘secret’ hearings cases, that is those listed in AJA 1960 s 12(1).

 

Common law and open justice

 

The starting point for a review of the law on open justice, and private’ or ‘secret’ (or ‘confidential’) hearings, must be Toulson LJ in the Court of Appeal in Guardian v Westminster (above) (subsequently approved by Supreme Court in eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558). He explained the status in law of the open justice principle as follows:

 

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

 

Generally speaking a fundamental rights – and as a common law principle open justice has been confirmed by European Convention 1950 Art 6.1 – cannot be overridden, even by Parliament, by ‘general or ambiguous words’ (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33; [2000] 2 AC 115) This was explained by Lord Hoffman in exp Simms (at [2000] 2 AC 115 at 131) as follows:

 

Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

 

In Allan v Clibbery Dame Elizabeth Butler-Sloss P referred to Scott, Administration of Justice Act 1960 s 12(1), Hodgson v Imperial (above) and CPR 1998 r 39.2(3). Whilst she concluded that the then Family Proceedings Rules 1991 were intra vires the then rule-makers, she also concluded on terminology that the different types of court hearing broke down into open court, private and confidential. Dame Elizabeth said:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

On this basis, the Family Law Act 1996 Pt 4 proceedings were ‘in private’ but not confidential. Miss Clibbery was therefore permitted to release documents from the proceedings to the waiting press (as she had already done). Mr Allan’s injunction was discharged. In Norman v Norman [2017] EWCA Civ 49 Lewison LJ described that outcome and the meaning of ‘private’ (in the context of proceedings being reported) as follows:

 

[85] … The mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings: Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261 at [17] and [51]. However, the fact that parties are required to make full and frank disclosure of financial information may justify reporting restrictions relating to that information: Clibbery v Allan at [73] and [79]. But there is no blanket ban: Clibbery v Allan at [83].

 

The Court of Appeal definition is the common law which applies to family as to all other types of proceedings. As ever, a rule cannot make, still less override, the law (Jaffray v The Society of Lloyds [2007] EWCA Civ 586), [2008] 1 WLR 75); and nothing was said of all this in the statute which empowers the rule-makers (Courts Act 2003 ss 75 and 76). Either on this basis or under exp Simms principles, the rule-makers – who are not Parliament – cannot override a common law principle. It may be worth adding that FPR 2010 are made by the negative resolution procedure (Courts Act 2003 s 79(6)) so they do not need formal approval by Parliament. Mostyn J’s comment in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 – that ‘[14] …. Parliament when passing the rules specifically maintained [ancillary relief] proceedings as private, and denied members of the public admission to them’ must be read with s 79(6) in mind.

 

Even if the rule-makers do have a power to override the common law by r 27.10, the drafting of the rule is ambiguous. Rue 27.10 says the same as the Court of Appeal said in Hodgson as to what is the meaning of ‘chambers’; and that means something different from ‘secret’ proceedings. ‘Secret’ proceedings are those covered by the exceptions which run in a line from Scott, through AJA 1960 s 12(1) to the modern CPR 1998 r 39.2(3). Other proceedings under FPR 2010 which are not expressly open court (such as divorce and committal) are ‘private’. As Hodgson and Allan v Clibbery both say, they are ‘in chambers’ but, space permitting, the public may be admitted; save for those listed in s 12(1) which are ‘secret’.

 

Allegations of a ‘criminal nature’

 

For family proceedings, as for all others, perhaps the last word can go to Lord Atkinson in Scott (cited by Lord Sumption as a conclusion to the passage above):

 

[12] As Lord Atkinson observed in [Scott] at p 463, this may produce inconvenience and even injustice to individuals: ‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

 

And as to allegations ‘of a criminal nature’: it must be recalled that under Prison and Courts Bill cl 47 (which is the proposed statutory amendment with which this article begins) it is allegations which have been the subject of existing findings by a court – criminal or in injunction proceedings – which forms the basis of an application for advocacy assistance.

 

Surely there is no reason why cases where such allegations are being made should not be open to public scrutiny (if anyone is interested to attend)? After all, the origin of the Scott case was that Mrs Scott wanted her former husband’s family to understand the true nature of what she had alleged about him, and which the court had found, against him. The modern equivalent of Mrs Scott might be the physically abused woman.

 

Scott makes clear that the presumption is that all cases will be heard in open court. As Viscount Haldane states (see passage above): the burden is on anyone ‘seeking to displace [the presumption] in the particular case to make out that the ordinary rule must as of necessity be superseded’. And then, he goes on, it is not a matter of judicial discretion was to whether an application for privacy is allowed but one of legal principle (see eg R v Legal Aid Board (exp Kiam Todner (a firm)) [1999] QB 966, [1998] 3 WLR 925, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J). Just because the parties agree to exclude the press does not mean the court should go along with them.

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# Humanrights and children’s rights: interference with publicity

Publicity: ‘interplay’ of public interests in court proceedings

 

Family proceedings, governed by Family Procedure Rules 2010, are heard in private save where rules or court order otherwise provide (FPR 2010 r 27.10). The press may be admitted (r 27.11(2)). Alongside this Sir James Munby P is keen to encourage legitimate reporting of family courts (Transparency in the family courts: publication of judgments:  practice guidance issued on 16 January 2014 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf).

 

Human rights under the European Convention 1950 govern privacy, with the confidentiality of family – especially children proceedings – alongside the rights (such as they are) of the press to publicise information about family proceedings. Convention articles 6, 8 and 10 will mostly be in play. Generally the fact of Art 6 (right to a fair trial) will not be in question, as explained by Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591:

 

[15] … Article 6 is, however, relevant so far as it provides that “the press and public may be excluded from all or part of the trial” for a variety of reasons including “where the interests of juveniles” so require. The purpose of a public hearing is to guard against an administration of justice in secret and with no public scrutiny and to maintain public confidence….

 

The balance which must be struck, said Lord Steyn, is mostly between Art 8 (right to a private and family life) as against Art 10 (freedom of expression). But first, Human Rights Act 1998 s 12(4) must be born carefully in mind when any decision is to be made about publicity:

 

[16] By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right.

 

HRA 1998 s 12 gives particular prominence to ‘freedom of expression’, and in particular it says:

 

(4)The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)the extent to which—

(i)the material has, or is about to, become available to the public; or

(ii)it is, or would be, in the public interest for the material to be published;

(b)any relevant privacy code.

 

Interplay of public interests

 

So, said Lord Steyn, in looking at the ‘interplay’ between Arts 8 and 10 – that is of the public interests of privacy on the one hand and of freedom of expression and openness of court process on the other – the balance must be struck with the following in mind:

 

[17] … First, neither article [Arts 8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

 

For example, in Birmingham City Council v Riaz, AB & Ors [2015] EWHC 1857 (Fam), [2016] 1 FLR 797 (and see https://dbfamilylaw.wordpress.com/2015/07/03/child-sex-abuse-lifetime-reporting-restriction-for-survivor/) Keehan J granted a lifetime reporting restrictions order to a young woman who had been the subject of severe sexual abuse. He cited s 12(4) and then confirmed that he had had cited to him JXMX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 (where anonymity was granted to a child under an infant settlement order; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). He explained his view where the anonymity of a child was concerned in the light of s 12(4) and the interplay of Arts 8 and 10:

 

[13]   It might be thought that the decision of the Court of Appeal in JXMX, in recognising that lifelong anonymity orders should normally be granted in a particular class of case, ie infant or protected party settlement approval hearing, does not sit easily with the long line of authorities emphasising the importance of open justice and the freedom of the press. For my part, I would not share that view. Rather the decision reflects the emphasis the courts now place on the need to accord due respect to the Art 8 European Convention rights of litigants, especially of children, young people and protected parties balanced against the Art 10 rights of the press and broadcast media. The position is encapsulated in the observation of Moore-Bick LJ when he said, at para [29]:

The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant’s identity.

I respectfully agree.

 

In JXMX and Birmingham v Riaz the rights of the child to anonymity took precedence over any other, including the rights of the press seen in terms of HRA 1998 s 12(4).

 

Children’s rights: another dimension

 

And when it comes to the rights of children in civil proceedings generally, in a short judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26 [2016] 2 FLR 251 (where the Supreme Court continued an interim reporting restrictions order in a case where PJS was threatened with media exposure of his ‘three way’ sex proposal; and where full prominence was given Lord Mance in the Supreme Court to a consideration of s 12(4)) Lady Hale reflected on a child’s rights and protection of their interests. She explained that at a final trial of the injunction application ‘the likely harm of the children’s interests’ must be considered (para [73]). Their rights add another dimension to the injunction balancing exercise:

 

[78] In the leading case of In re S (A Child) (Identification: Restrictions on Publication) ([above]), very careful consideration was given, at first instance, in the Court of Appeal and in the House of Lords, to balancing the public interest in publishing the name of a woman accused of murdering her child against the welfare interests of her surviving child who was living with his father. The public interest, in the legal sense, of publication was very strong. There was expert evidence of the welfare interests of the surviving child. It could not be more different from this case. As Lord Mance has demonstrated, there is no public interest in the legal sense in the publication of this information. There is no expert evidence of the interests of these children. These are all matters which should be properly argued at trial, not pre-empted by premature disclosure.

 

In any proceedings – criminal or civil – the interests of children affected by publicity and the outcome of the proceedings will have high priority. In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338 in the Supreme Court in a deportation case, where the families of the proposed deportees were affected by any decision, Lord Kerr said (substantially in agreement with Lady Hale):

 

[144] I have found the argument about the place that children’s interests should occupy in the hierarchy of the court’s consideration of article 8 most persuasively expressed in the Coram Children’s Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests. It also ensures a structured approach to the application of article 8. … Where a child’s interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided.

 

As can be seen, Lord Kerr speaks in classic rights language: what are the rights of any children concerned; what is the extent of the interference proposed by the parties and the court; and what (if any) is the level of justification for that interference with the child’s rights? This sequencing is the starting point for wider consideration of the issue of children’s right as human rights with which this article is concerned.

 

In Re S (Identification: Restrictions on Publication) (above) the issue was the anonymity of the mother in her criminal trial; but, agreeing with Hedley J at first instance, the House of Lords held the interests of publicity for a criminal trial out-weighed the Art 8 interests of the child whose identity might be discovered. If Lord Kerr’s sequencing approach and Lady Hale’s PJS comments were added to the child’s rights mix in a similar application today, it is tempting to wonder if the decision in Re S would be the same?

HUMAN RIGHTS ACT AND FAMILY LAW: REFORM, REPEAL OR REPLACE

Convention law: a safety net

Human Rights Act 1998 and its incorporation of most of European Convention 1950 into English law has become a fundamental aspect of the English and Scottish constitutional framework; and it was often taken into account by judges long before its formal incorporation into British law in October 2000 (see eg Bingham LJ in W v Egdell (below)). However it must be recalled that it is mostly as a safety net that the 1998 Act and the Convention operate. That is part of its fundamental importance. The principle on which an effective welfare benefits system operates – as the post-War Beveridgeian system was intended to operate – is, as much as anything, as a safety net for those not provided for otherwise financially. So it is with the English statute and common law: that where these falter the Convention may plug the gap.

Toulson LJ (now Lord Toulson) explained the other side of this coin in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

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

Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.

Speaking – as I do – as a family lawyer (I dare not call myself a ‘constitutional lawyer’ as this series demands) I believe the Human Rights Act 1998 has done three things, all of which may survive within the common law and judicial thinking for many decades; though the points made here may apply in many – or most – areas of law:

  • It has sharpened up our understanding of legal concepts we had always used, but which the Convention made us rethink
  • It has made judges and lawyers balance the principles applicable and summarised in the Articles; known in Convention terms as ‘proportionality’
  • It has made us all, perhaps family lawyers especially, re-think aspects of the laws of confidentiality and privacy

Understanding legal concepts

Most English lawyers, including family lawyers, would have assumed that anyone who came before an English court in the twentieth century received a fair trial; and most family lawyers in the 1990s would have accounted the husband in Mubarak v Mubarak [2001] 1 FLR 698 as one of the more extreme rogues to have been dealt with in the family courts. As luck would have it (together with Mr Mubarak’s ability to fund an appeal, one might say) it fell to his case for the Court of Appeal to review the fairness of the rules made under Debtors Act 1869 s 5 (still in operation in the civil courts) for committal to prison for a debt ordered to be paid by a civil court. In 2000 (when Mubarak was heard) Civil Procedure Rules 1998 had recently been amended to apply, in civil (but not family) proceedings, the rule that a defendant should not be required to provide evidence against himself. The then family proceedings rules had not been so amended. As the 1998 Act was coming into force and Art 6(3) of the Convention coming to be applied to English court proceedings, the state of English family proceedings rules lead Brooke LJ to comment as follows:

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.

Proportionality: ‘ultimate balancing’

Many judicial decisions – regardless of operation of European Convention 1950 principles – involve, and have always involved, the judicial balancing of conflicting principles. Convention principles do not change that. It has, however, helped to bring the exercise into sharper focus.

Lord Steyn explained the operation of the Convention balancing test in a criminal and family case (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 at [17]): should the right of the press to publicise information about mother’s trial override the right of her child to privacy:

[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.

These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166

and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338. In Lifely v Lifely [2008] EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:

[35] The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.” For Article 10 in that case, read Article 6 in this [Lifely] case.

[36] In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the “ultimate balancing test” [as above]:…

[37] In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew’s property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,… was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.

Confidentiality and privacy

Ten years before Human Rights Act 1998 (in November 1989) Bingham LJ concluded his judgment in W v Egdell [1990] Ch 359, [1990] 2 WLR 471 (an important case in the context of when confidentiality and advice privilege may be breached) by stressing the significance of European Convention 1950:

No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.

This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).

That said, rules in relation to privilege have been known to and developed by the common law at least since the sixteenth century (as explained in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513). This will not go if Human Rights Act 1998 is repealed.

Conclusion: the lessons of European Convention 1950

Privacy and the law of confidentiality is an important aspect of family law and needs to be tended carefully. This and so much else would be much better developed within the common law but under the oversight of European Convention 1950 principles. The family law will always want to recall the lessons of Mubarak and the balancing test in Re S. These lessons will remain; but how many other lessons, as yet unlearned, will be lost if the prominence of the Convention is lost to English and Scottish law? How many of Brooke LJ ‘dusty corners’ will remain unswept if an overarching jurisprudence, such as that provided by the Convention  is not regularly applied? To close the legal mind or any body of law to any legal development is a retrograde step. Like John Donne’s continent: any that is washed away ‘diminishes’ the whole.

HUMAN RIGHTS ACT 1998 AND ENGLISH LAW: Part II

Human Rights Act 1998: a safety net

In Part I of these two articles, I pointed out that Human Rights Act 1998 Act has two particularly civilising features as I see it: it provides a mechanism for checking judicial decisions against certain norms of rights and freedoms (eg should the mother of a child, entitled to stay here, be deported where it affects the child’s welfare: H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25); and it puts a check on the more extreme actions of individual state legislatures (which is what the Tories resent).

However I pointed out that the vast majority of the rights and freedoms enjoyed under English law are protected by the common law; and that if the Human Rights Act 1998 or parts of it were repealed most of us would not notice any effect. HRA 1998 is mostly a safety net; and a feature of a safety net is that it is only designed for a very small number of people.

 

To illustrate the working of HRA 1998 let me take some topical examples of the Convention in operation – or as it might be in operation; and of its relationship to the common law (already considered to a degree in https://dbfamilylaw.wordpress.com/2014/09/27/rights-freedoms-and-the-common-law/ ).

  • What should be the rights of a man who has been convicted of abuse on one or more children on his seeking parole at the end of the minimum period which he should serve for a life sentence?
  • What rights to privacy should a person have against the press making false or exaggerated reports against them (eg the parents of Madeleine McCann); or of making any reports if it interferes with their family life?
  • What protection should a person have where s/he has informed a child protection department of abuse by A, where A is involved in separate court proceedings in relation to another child (and may be a danger to that child).

On (3) the law is muddled. I think I know the law on (1); but I doubt it is Human Rights Act 1998 compliant. On (2) the law says one thing and sections of the press will do another; and the law seems powerless to act against cynicism and rank financial power. My answers are general, and must not be taken as the words of an expert.

Parole for an abuser

Imagine that a man has been convicted of rape of a child and has been given a life sentence, with a recommendation that he serve at least ten years, after which he is eligible for parole. His application will be considered by the parole board. What right should his victim – the survivor of his rapes – have to make representation at his parole board hearing? What rights should she and her family have to comment on his case. She can put in a ‘Victim Statement’; but as far as I can see, as the law now stands, she can do no more. She cannot comment on the case he puts before the board, nor can her family be sure to have anything they say taken into account.

So what are the rights in play (I have to set these out in full):

6 Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

8 Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The victim might argue also that Art 3 was engaged: Prohibition from torture ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. This is considered in connection with the informant case below; and it might well apply here. For the present, however, I will confine this European Convention 1950 assessment to Arts 6(1) and 8.

So far as the victim is concerned the critical feature of this is what is meant by ‘the determination of [her] civil rights’? It does not only mean involvement in court proceedings: it raises the question of whether a person is entitled to take part in proceedings at all. Clearly the abuser is entitled to take part in a judicial process operated by the parole board. Clearly his and the victim’s rights to respect for family life are engaged; and so far as these rights conflict – as they will do – the board must take this conflict into account. It may be said that the victim statement is sufficient. It seems to me it is worth the victim and her family pressing rather further with the board any right they may have to press the board to take their views directly into account; and to permit them an opportunity to comment directly on what the abuser has said to the board.

Right to privacy

It is said that there is no right to privacy at common law; though there are sophisticated English laws to protect a variety of forms of confidentiality. HRA 1998 has developed within the common law a greater respect for family life (Art 8). However, someone who suffers from the newspapers publishing untruths about them, their protection at law – as distinct from any assistance they might get from the post-Leveson Independent Press OS – is mostly derived from the common law of defamation.

It may be a rocky road ahead for such a claimant. HRA 1998 makes it no easier or more difficult. HRA 1998 s 12 deals with freedom of expression; and s 12(4) puts emphasis on the need for the courts to guarantee such freedom. This may assist a private individual (eg a parent who wants to publicise the behaviour of a local authority towards her child) or a newspaper (eg who wants to publicise family proceedings which might otherwise be expected to be in private). It is unlikely that HRA 1998 will have affected the position of the person who claims he has been defamed; though if his privacy has been directly infringed the HRA may assist him with a claim against whoever has published unlawfully.

Child welfare informant

Suppose you have information about abuse of a child, and you provide that information in confidence to a social worker and on terms that you will not have to go to court: can you relay on your name being kept from the abuser? The courts have partly provided an answer where the informant had herself been abused. The answer in her case was no: she had to give evidence. And if he were unrepresented she might have to be cross-examined by her abuser.

In a particular case which deals with this (Re A (A Child) [2012] UKSC 60) a 10 year old girl (A) was having contact with her father (F), when an informant (X) came forward and said she had been seriously abused by F. A’s mother (M) was advised by her local children department to prevent contact; but on what evidence, said M? The only evidence was that of X who thought she had provided it in confidence. The right of A, F and M to a fair trial was said by the Supreme Court to override X’s right to respect for her family life and any fears there might be of her suffering ‘inhumane or degrading treatment’. Lady Hale said of degrading treatment:

[32] …. But the context in which treatment takes place affects the severity of its impact. The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her.

Of the respective parties’ rights under Art 6 and 8 and how these should be balanced Lady Hale said:

[33] …. to order disclosure [of X’s evidence] in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?…

[35] The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.

[36] It does not follow, however, that X will have to give evidence in person in these proceedings.

The right to a fair trial for the family therefore overrode any rights to which X might be thought to be entitled. This was not the same as the conclusion reached by the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171; and it is not the same basis for a decision in police informant cases (see eg Marks v Beyfus (1890) 25 QBD 494; Powell & Anor v Chief Constable of North Wales Constabulary (Case No: CCRTI 1999/0904/B1) CA 1999 WL 1142622).

The Human Rights Act 1998 enabled the court to conduct a balancing exercise between competing rights. This brings clarity to the process of balancing respective rights. Whether it produces an answer which is clear in law, when compared with other informant cases (eg the police cases and D v NSPCC), is more questionable.

Conclusion

In each of these cases the claimants, or those who have been wronged in various ways, would have the same rights under the English common law as under HRA 1998. In the parole board case there might be heightened concern as to respective rights on both sides in the light of European Convention 1950 case law; and in the third case a resolution of the child welfare informant’s position is probably needed in statute law in the light of the conflicting Supreme Court decisions.

Little would change in these cases if HRA 1998 were repealed. The respective parties claims derive from the common law and will remain intact either way.

HUMAN RIGHTS ACT 1998 AND ENGLISH LAW

An unwritten constitution

The lack of a single and fixed written constitution gives certain clear advantages to the people of the United Kingdom (here called the ‘English’ for short; though the law considered below is English and Welsh, and mostly affects the Scots). We do not have to ask permission to do anything, unless a law requires that we do (eg to walk on someone’s land, which is prevented by common law trespass). We are therefore free to do what we want, unless the law – common law, statute or delegated legislation – says we cannot.

For example, the common law says we may not kill (derived from the ten commandments); statute law says we may not drive more than 30 per hour in certain (mostly built up areas); and there are a variety of mostly statutory offences in between. The common law asserts that we have a duty of care towards others reasonably proximate to us (and enables us to sue in tort if someone breaches their duty of care: eg by negligently injuring us in a car accident). It is part of the system of having a fair trial, protected by the common law, that an individual should be entitled to take legal advice without anyone – but anyone – knowing what was that person’s legal advice (known as ‘advice privilege’).

The rights or freedoms, and restrictions, set out above long pre-dated Human Rights Act 1998 and will survive it. Unless they specifically curtail every right and freedom they can think of, no Government can remove most of what HRA 1998 protects. I personally think what the Tories propose is historically illiterate, legislatively coarse politics in a very subtle area of law over which politicians since 1688 have wisely trodden only very warily; and they should continue so to do.

Effects of Human Rights Act 1998 on English law

What the Human Rights Act 1998 has done is to assert: first that the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 formally applies in England. This only confirms for us many of the rights which we have for long assumed. This is unsurprising: the Convention was written mostly by English common lawyers. And we will continue to assume the same rights whether or not HRA 1998 is repealed. As Lord Cooke put it, in a case in the House of Lords: ‘conventions, constitutions, bills of rights and the like respond by recognising, rather than creating, [rights]’. Lord Cooke is saying, things like HRA 1998 is nothing new: the rights were there long before the Act. The rights continue unless parliament specifically excludes them or restricts them (like telling us we cannot drive too fast; or may not assault or bodily harm another person).

Secondly the Act requires English judges to ‘take into account’ existing Convention jurisprudence (HRA 1998 s 2(1)). That is to say, it does not make English judicial decisions subject to the decisions of the European Court (as some politicians seem to think).

Thirdly, laws must be interpreted so far as possible to make them compatible, or to comply, with Convention rights (s 3); and if the High Court thinks they are not it may so declare (s 4), which discourages Parliament from passing laws which are contrary to rights specifically protected by the Convention. This is the bit which the more primitive politicians find unsatisfactory. They find it hard to accept a higher authority based on a very few fundamental rights.

The Convention will remain, whatever happens to Human Rights Act 1998; just as will our common law. Most English judges will follow its principles since they are part of our common law anyway. For the vast majority of English people the repeal of the present Act would not alter their individual rights in any way (for example, the European Convention 1950 has nothing to do with state benefits; the right to health and a national health service or education: those are guaranteed by altogether separate legislation). Only a tiny minority of English people are homosexual serving soldiers or prisoners who want to vote in elections (whose rights, as it happens, are protected by Convention jurisprudence).

The Act has two particularly civilising features as I see it: it provides a mechanism for checking judicial decisions against certain norms of rights and freedoms (eg should the mother of a child, entitled to stay here, be deported where it affects the child’s welfare: H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25); and it puts a check on the more extreme actions of individual state legislatures (which is what the Tories resent).

Topical examples

In a further note I will take some topical examples of the Convention in operation – or as it might be in operation; and of its relationship to the common law (already considered to a degree in https://dbfamilylaw.wordpress.com/2014/09/27/rights-freedoms-and-the-common-law/ ).

(1) What should be the rights of a man who has been convicted of abuse on one or more children on his seeking parole at the end of the minimum period which he should serve for a life sentence?

(2) What rights to privacy should a person have against the press making false or exaggerated reports against them (eg the parents of Madeleine McCann); or of making any reports if it interferes with their family life?

(3) What protection should a person have where s/he has informed a child protection department of abuse by A, where A is involved in separate court proceedings in relation to another child (and may be a danger to that child).

CIVIL LEGAL AID: EXCEPTIONAL CASE DETERMINATION

Exceptional case determination

Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 represents the only way that a person can obtain legal aid for civil legal services (civil legal aid), outside the narrow spectrum of cases – domestic ‘violence’, forced marriage etc – covered by Part 1 Sch 1 of the Act.

Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services).

LASPOA 2012 s 10(2) provides:

(2) This subsection is satisfied where the Director—
(a)has made an exceptional case determination in relation to the individual and the services, and
(b)has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).

LASPOA 2012 s 10(3) defines what is an ‘exceptional case’ (as further explained by Black LJ in JG (below)):

(3)For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

It is important to stress here that ‘exceptional’ is not a general term – as eg rare, highly unusual etc – but refers solely to the fact that grant is required to comply with UK responsibilities under Human Rights Act 1998. If legal aid is required for that purpose it is, by definition, ‘exceptional’ and s 10 is satisfied.

European Convention

The main rights under the Convention in play in most cases will be Art 6(1) and 8:

Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Freedom from discrimination (Art 14) and freedom of expressions (Art 10) will also be significant, in appropriate contexts.

Children and Convention rights

The significance of children in any Convention assessment must be recalled always: nothing may be given ‘greater weight’ than their interests says the Supreme Court (see Lord Kerr below). If a balance is required to be struck between their, and other, Convention rights (Convention ‘proportionality’), this must be conducted by measuring ‘the nature of any impact on the child’ (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 (at para [17]).

The interests of the child are as much a primary consideration for the LAA decision-maker as for any other agency (eg local authority of government department) (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and (say) the right of the parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 Lord Kerr explained the primacy of a child’s interest:

[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….
[145] ….no factor must be given greater weight than the interests of the child.

Convention rights: exceptional cases

In JG v Lord Chancellor and ors [2014] EWCA Civ 656 Black LJ and the Court of Appeal considered s 10 in the context of legal aid and payment for an expert’s fees in civil proceedings. The meaning of ‘exceptional’ in s 10(3) was explained by Black LJ at para [110]. She stressed that, as a matter of ordinary statutory construction, all that s 10(3) does is to produce a ‘description … not a test or additional hurdle’ for the applicant (and see Coulson J in M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin) at para [58]).

Both judges stress the ordinary meaning of the words in s 10: that ‘exceptional’ there means only that the application is outside Part 1 of Sch 1, not the facts of the application are in some way ‘highly unusual’ or out of the ordinary.

The QB Divisional Court (Moses LJ, Collins and Jay JJ) has gone further. In R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (at para [13]) Moses LJ defined s 10 as catering for applications for funding as two-fold: mandatory (where a ‘substantial interference’ with an Art 6 right might occur) and discretionary (where there is ‘a risk of such breach’).

I understand that the PLP case and Gudaviciene below may be under appeal to the Court of Appeal; but for the present they represent the law.

Guidance

LASPOA 2012 s 4(3) includes amongst the duties of LAA decision-makers, that they must ‘(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions’. Guidance must be in accordance with the law. In particular, it is a basic principle of administrative law that a public body may not ‘fetter’ a discretion entrusted to it by statute, since Parliament confers discretion to ‘promote the policies and object of [an] Act’ (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).

Guidance may not impose inflexibility where its empowering statutory provision does not provide for it, nor limit the scope of a decision-maker’s discretion beyond that which is anticipated by the statute (R v Secretary of State for Department for the Home Dept exp Venables [1998] AC 407, [1997] UKHL 25 at 496-7).

Lord Chancellor’s exceptional funding guidance (non-inquests) (undated) (‘the Guidance’) represents guidance under s 4(3). Its legality was considered by Collins J in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin). This was a series of immigration cases; but the principles applicable to guidance to decision-makers apply in all grants of civil legal aid.

Collins J describes the Guidance thus:

[9] … [It] lays down some principles which the Director is to apply and some of those are said by the claimants to be unlawful. Paragraph 6 notes that s10(3)(b) does not provide a general power to fund cases which fall outside the scope of legal aid. It is, it is said, ‘to be used for rare cases’ where the risk of the breach of material rights ‘is such that it is appropriate to fund [para 7 which is cited in full including]:
(7) … Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).

He points out that the Guidance bases its approach to grant of legal aid by reference to Airey v Ireland (1979) 2 EHHR 533 and X v UK (1984) 6 EHRR 136. From the latter case the Guidance derives its ‘practical impossibility or obvious unfairness’ test (para [15]). But is this the correct test? Collins J says it is not:

[19] The ‘overarching question’ posed in the Guidance is ‘whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.’ This is said to be a very high threshold. As I have said, it is based on X v UK. In setting out this test, the Commission referred to Airey v Ireland.

After full consideration of relevant case law Collins J deals with the ‘threshold’ question at para [28].

• There must be ‘effective access to a court’: for example a litigant must be able to present all relevant evidence and ‘engage with the process’ (AK & L v Croatia (Application No 37965/11: final on 8 April 2013));
• There must be ‘overall fairness’; and
• That where appropriate a decision-maker must have in mind Art 8 (respect for family life) to which the Guidance, he says, does not refer adequately (para [51]; and see H(H) and comments of Lord Kerr above).

He held that the X v UK ‘practically impossible’ test (used by LAA decision-makers) sets the bar ‘too high’ (para [28]) for s 10; and that to this extent the Guidance is unlawful (para [128]).

Overriding of fundamental rights

Further it is necessary here to bear in mind two further basic principles of administrative law: first, the ‘fetter on discretion’ point made in Gudaviciene (above); and, secondly, that fundamental rights of an applicant for legal aid can only be overridden by specific statutory provision. This point was made by Moses LJ in R (ota PLP) (above). The case concerned delegated legislation proposed by the Lord Chancellor to limit legal aid to those with a close connection to the United Kingdom (what he terms ‘our people’). PLP said the Lord Chancellor had no power to do this.

The minister accepted his statutory instrument as discriminatory, but was such discrimination lawful? Reading Art 14 (discrimination) with Art 6(1) the Court of Appeal said the delegated legislation was unlawful. Thus of the right to legal aid for representation in court proceedings Moses LJ said:

[53] The obligation of a state to provide legal assistance in some circumstances was not in dispute. The principle is now well established both in domestic and Strasbourg jurisprudence. The right to legal aid can be invoked by virtue of Art 6(1) of the Convention (Pine v Law Society (No 1) [2001] EWCA Civ 1574). The duty to provide legal aid in some cases is no more than an aspect of the principle that the state is under an obligation not to impede access to court. Section 10 of LASPO is the provision adopted to meet the United Kingdom’s obligation to provide legal assistance in those cases where a failure to do so would risk a breach of Convention or EU rights.

A person speaking only a foreign language in English courts, might be in more need of representation that someone who can at least read the language (a point which recurs in Q v Q [2014] EWFC 7 and recurs in the later version of that case). The same would apply to a person confronted with difficult legal principles or of procedure.

Grant of legal aid: ‘rights that are practical and effective’

In JG black LJ cites Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601. This she says is the modern authority for the proposition that there is no absolute obligation under European Convention 1950 to make legal aid available for all civil disputes. That is not the only criterion (as Collins J also demonstrates). Thus Muscat says that the Convention is concerned that mere lip-service to rights is not paid by legislators; but the Convention:

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

Access to the court must include the ability to see the case through to a ‘determination’; and Muscat (para [46]) breaks down entitlement to legal aid as follows:

(1) That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case;
(2) Legal aid should be available guaranteed – part of a State’s ‘obligation’ – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1); and
(3) There should be active intervention by a State to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’.

Exceptional case determination: application

If the language of s 10 is construed within the terms of the policy behind the section – to ensure United Kingdom complies with its convention obligations under Art 6 – then it can be seen that ‘exceptional’, as Black LJ explains in JG (at [110]) describes only a category of grant.

As the law stands the Lord Chancellor’s Guidance is unlawful to the extent that it seeks to fetter a decision-maker’s discretion in grant of legal aid. Any applicant for family proceedings legal aid where, for example, his/her access to the courts is for practical purposes impeded and the fairness of a trial made impossible, can – subject to financial eligibility – rely on s 10(3) to seek a grant of legal aid. The threshold for determination of coming within s 10(3) is, as Collins J explains in Gudaviciene, that a litigant can properly and fairly engage with the court process (paras [28] and [51]).

RIGHT TO PUBLISH WARDSHIP CASES: HOW FAR?

Publicity: further scope for a criminal charge

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

(a)where the proceedings –

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

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

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

 

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

 

Relaxing the restraints on publicity

 

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

 

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

 

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

 

[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….

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

 

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

 

Court promoting publicity

 

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

 

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