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.

Advertisements

EU withdrawal – children’s rights to ‘express their views’

Children and EU Charter of Fundamental Rights: rights to be lost?

 

This article looks at children’s rights in legal proceedings which will go with EU withdrawal; and which can only be replaced if MPs specifically take steps to create new law. If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than is promised by English law as it now stands.

 

It is not always well-known that EU has its own human rights charter: Charter of Fundamental Rights of the European Union (2000/C 364/01) , much of which is modelled on the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In certain important respects it develops the European Convention 1950, especially in the field of children’s rights (which have no direct mention in the 1950 Convention).

 

The Charter will go with EU withdrawal; so will the children’s rights which it protects be replicated in English law – so far as English law is now different? In certain crucial respects it is fundamentally different as will be explained.

 

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

 

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

Children’s views, according to age and maturity

 

This article looks at the meaning and effect of Art 24.1: ‘They may express their views freely. Such views shall be taken into consideration… in accordance with their age and maturity.’

 

United Nations Convention on the Rights of the Child 1989 Art 12  – by which UK will still be bound, so far its provisions are enforceable – is in similar terms to Art 24 of the Charter as to a child’s right to be heard in ‘judicial proceedings’: that is ‘to express… views freely’; and for them to be ‘given due weight [according to the child’s] age and maturity’ (Art 12.1).

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was taken into consideration by the Court of Appeal. The question of a child being heard was raised to a ‘fundamental principle’ of English child law. In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

 

‘Right to participate’ in proceedings about the child

 

In Re D Ryder LJ in the Court of Appeal treated the child as having ‘the right … to participate in the process that is about him or her’ (§44); but only because of EU legislation. He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case.

 

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). This provision – which is central to English law on this subject and to this article – seemed radical when made law in 1989. Looked at in the light of EU legislation it has a somewhat shop-worn and conservative air. Section 1(3)(a) says:

 

(3) [When the court is considering making an order about a child it] shall have regard in particular to –

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

 

 

This, said the judge in Re D [2016], was a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded (emphasis added):

 

[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

In practice the questions of whether a child should meet a judge state a view to him or her is left to non-statutory GuidelinesGuidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 – issued by an unofficial non-statutory body (albeit approved in case-law). It is now seven years old and states its purpose as being ‘to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings’. There is no reference to any rights for children; still less to either Art 24 (or to the UN Charter).

 

Child’s right to be heard: nothing to be ‘given’

 

If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than this. This is because of:

 

  • Children Act 1989 s 1(3) gives the court only an option to consider my views;
  • The Guidelines give me no reassurance that English judges realise that I have rights (if I want to express my views); not that they have the option whether or not to receive my views; and I would prefer that those rights, in statute, be referred to in statutory guidelines, not the informal 2010 Guidelines.
  • I am afraid my worries would not be made less by a speech of a leading family judge King LJ ‘Giving children a voice in litigation: are we there yet’ , a speech given in November 2016. If a child has rights, there is nothing for judges to ‘give’. Theya re entitled to have their voice heard say Art 24 and Art 12; but this is not what English law on its own says.

 

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2007] 1 FLR 961 the House of Lords was dealing with an 8 year old. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

 

[57]… Until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

All of this – from Art 24 to Lady Hale’s views in Re D [2007] speak for a child’s right – emphasis on ‘right’ – to be heard. Just as the English judiciary have done so far, the wording of Children Act 1989 s 1(3)(a), as I read it, comes well short of a right. As the ‘guidelines’ say, it is up to the judge to decide: no question of a child’s ‘right’. By contrast the Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 and Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) eg Art 23 each guarantee rights and participation. That will go with EU withdrawal unless it is reproduced in UK legislation. (And this is before we look at what will be lost to children and others involved with EU withdrawal with the loss of the reciprocal arrangements in Brussels IIA.)

Abuse by cross-examination in family courts

 

Law reform, Women’s Aid and a Parliamentary domestic violence group

 

The All-Party Parliamentary Group report on domestic violence, Domestic Abuse, Child Contact and the Family Courts All-Party Parliamentary Group on Domestic Violence (APPG report) of October 2016  (https://www.naccc.org.uk/downloads/NewsItems/APPG_Inquiry_report_Domestic_Abuse_Child_Contact_and_the_Family_Court.pdf) deals with domestic abuse and with contact in the context of family cases where contact is ordered. This article deals only with domestic abuse in the context of family court proceedings, and in particular the further abuse which may be inflicted by cross-examination of the complainant (A) by the alleged abuser (B); and, perhaps to a lesser extent, where A – as a party – may wish to cross-examine B. This is a subject covered extensively on this site already (and parts of previous detail are repeated here). This takes the subject further by reference to the APPG report and concludes with specific suggestions for law reform, which teh Justice Secretary might like to consider.

 

The issue is described by the APPG report (page 4):

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

The report recommends ‘special measures’ which in family courts terms are proposed to include ‘dedicated safe waiting rooms for vulnerable witnesses and separate entrance and exit times [for them in all] family courts’. These measures could go much wider, especially – as discussed here – in relation to Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) and as highlighted by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at §28 (and see https://dbfamilylaw.wordpress.com/2017/01/09/vulnerable-witnesses-and-children-human-rights-and-legal-aid/).

 

Where domestic violence and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for A to be submitted to cross-examination by B; and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article therefore proposes:

 

  • Ways in which some funded help for A (under (1) and (2) above) can be provided as the law now stands; and
  • Specifically to draft a suggested law reform which can be set out as a Schedule to an existing Bill and added as an amendment to Family Law Act 1996 Part 4 (which deals with the present statute law on domestic violence).

 

Family proceedings: lagging behind criminal proceedings

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James Munby, President of the Family Division which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. The need of the abused party (A) was highlighted in H v L and R [2006] EWHC 3099 (Fam) where a father (ie B) wanted to cross-examine his child’s abused mother. The judge, Roderic Wood J, ‘invited urgent attention’ (§[25]) to judges being given power to appoint a publicly funded advocate in criminal proceedings as under YJCEA 1999 s 38(4). 10 years later, beyond a review urged by the Guardian and Women’s Aid and ordered by the Justice Secretary, Lynn Truss, nothing has happened.

 

In criminal proceedings, a witness in A’s position is protected (YJCEA 1999 Part 2 Ch II). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Complainant: a party to proceedings

 

Criminal proceedings in this area are procedurally different from civil proceedings, and especially family proceedings; though both are capable of dealing with the same set of facts, though with different results. In criminal proceedings Crown Prosecution Service takes proceedings. Though A is the complainant, she is a witness so there will always be a CPS advocate to deal with her evidence in court and to cross-examine B. In family proceedings she is, by definition, a party. She still gives evidence and may be cross-examined (as in (1) above, considered more below); but, if unrepresented, she is responsible for running the case and for cross-examining B (ie (2) above).

 

So if she may not best be able to deal with cross-examination of B, because intimidated or for all the reasons she may want an advocate appointed, then already – that is, as the law now stands – Matrimonial and Family Proceedings Act 1984 s 31G(6) says:

 

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

 

So long as a judge accepts that A is ‘unable to… cross-examine’ B – and in the context a judge should need little persuasion of that – then s 31G(6) applies and the judge will ‘ascertain’ from A matters which need to be put to B and will question him him/herself in terms which are in A’s ‘interests’.

 

Section 31G(6) has been the subject of a small amount of case law; but, for the avoidance of doubt in the area defined by (2), a clear steer (ie a finding) by the common law (ie by a High Court judge in a decided case) on the subject as soon as possible would be helpful.

 

Cross-examination of the complainant

 

It is the situation at (1) above which calls for extra care, and for public funding. Formal parliamentary law reform would be infinitely preferable, to put the issue beyond doubt. However, if A is legally aided then it is suggested here that help along the lines of YJCEA 1999 Ch 2, and especially ss 38(4) and 40, could be available and be treated analogically in family proceedings.

 

Chapter 2 starts the way it means to go on. It leads with s 34 which reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

Chapter 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a victim, where the various forms of abusive situation in ss 34-36 apply:

 

(4) If the court decides that it is necessary in the interests of justice for the witness to be [cross-examined other than by accused in person], the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Funding of help for the complainant: legal aid and Human Rights Act 1998 factors

 

Sir James’s 30 December 2016 statement continues: judges cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority doubts this. Much can be done by judges under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) (above) (a case involving evidence from a child witness) the family courts can act (italics added):

 

[28] There are things that the [family] court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

If B’s cross-examination genuinely ‘diminishes’ (see YJCEA 1999 s 16) A’s evidence and denies her a fair trial, her European Convention 1950 Art 6(1) rights are engaged. If legal aid is not available (ie the case is outside LASPOA 2012 Sch 1 paras 11-13 (domestic violence etc)), A should apply for exceptional case funding (LASPOA 2012 s10(3); R (Gudanaviciene) v [LAA] [2014] EWCA Civ 1622). Resources questions can be addressed under the present law, whatever Sir James and Truss’s review say.

 

Common law and a fair trial

 

Witness/party protection and fair trial rights depend on:

 

  • Special measures (equivalent to YJCEA 1999 ss23-28 and per Re W [28] (above)) applicable in family proceedings; and
  • A has a right to a fair trial; and to give evidence of a quality which is not ‘diminished’ (akin to YJCEA 1999 s16).

 

If the above is right A must be protected by special measures such as a ‘s 38(4)’ equivalent advocate: is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged, and LASPOA 2012 s 10(3) may apply. This article argues that protection for A can be funded – now – from an existing legal aid certificate (Sch 1 paras 11-13) and pro-active common law case management. And, it must be stressed: this is not a plea for Presidential ‘practice guidance’ or a ‘tool-kit’. It is a straight-forward urging – with Lady Hale’s Re W words in mind – to a High Court judge to order appointment to be funded from a civil legal services certificate (the that judge is willing to find it within his/her inherent jurisdiction). It is a straight question of whether the common law is willing to move in that direction.

 

If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ (within the terms of YJCEA 1999 s 16), and if a fair trial is thereby threatened, European Convention 1950 Art 6(1) is engaged. LASPOA 2012 s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s 38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

 

Law reform and public funding: the court appointed advocate

 

Finally, what about statute law reform? It will be assumed, first, that s 31G(6) does what it is said to do above, but common law clarity would be helpful.

 

This leaves the court-appointed advocate, the funding of that advocate and amendments to the rules to cover that. For example, drawing directly on YJCEA 1999 ss 34, 38(4) and 40 amendments to Family Law Act 1996 along the lines of the following could be passed in Parliament:

 

  • In the circumstances set out in paragraph (2) no person (B) who is the subject of an application under this Act may in any family proceedings cross-examine in person a party (A) to those proceedings who is the complainant in connection
  1. with that application; or
  2. in any other proceedings in which the allegations the subject of the application arise [ie to cover issues also in eg contact proceedings].

 

  • The circumstances referred to in paragraph (1) are that A has made an application under this Act and has requested the judge that an appointment be made as at paragraph (3) below.

 

  • If application is made under paragraph (2) for A to be cross-examined other than by B the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

  • The person appointed at paragraph (3) is not responsible to B

 

  • To cover the proper fee or costs of a legal representative appointed under Family Law Act 1996 s ## [ie (3) above] (respondent’s representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his or her appointment [shall be met from public funds].

 

This will need tightening up a lot; but it represents a start….

Reply to Roger Scruton’s conservative view on rights

Freedoms and claim-rights

 

Sir Roger Scruton’s essay on How do we decide which human rights should be protected in law is published as a blog at http://barristerblogger.com/2017/01/08/exclusive-guest-post-sir-roger-scruton-decide-human-rights-protected-law/ . I plan a longer reply in relation to human rights and family law generally. In the meantime the following is developed slightly from my comment on the host blog site.

 

Scruton is introduced as ‘the country’s leading conservative philosopher and thinker’. This may be an ambitious claim; but it is not the purpose of this note to deny it. It is fair to ask: why do we have to ‘decide rights to be protected’; but space prevents an answer to that, perhaps the real question. And, in any event, Scruton does not answer it. He merely tells us what he considers to be rights and – though these are part of the thinking behind European Convention 1950 – what are not, in his view, rights. He concludes that certain rights which protect individual ‘sovereignty’ should be retained and claim-rights be ‘adopted, if at all, with caution’.

 

His paper divides rights into freedom and claim-rights (or benefit rights). The former are the classic rights to which an individual may be said to be entitled: a right to life, to a fair trial, to compensation in tort for injury; and certain rights to protect the individual from government oppression (torture, privacy etc). These rights create in the rest of us matching duties not to encroach on them. They are the rights of the individual and, by definition, entirely selfish (and no criticism is thereby intended by use of ‘selfish’).

 

Claim rights are the main thrust of Scruton’s argument and opprobrium. He appears to date them largely to a post-Second World War period (on the evidence of this paper Scruton’s grasp of history is not strong). He categorises these rights as: ‘claims for benefits, and rights to “non-discrimination” accorded to privileged (sic) groups’.

 

Discrimination and benefits rights

 

Let us dispose immediately of ‘privileged’. A knowledge of discrimination laws surely indicates that its whole purpose is not to provide privileges but to increase to a general level for the less privileged, rights which others already have? Thus in 1928 all women over 21 got more or less the same rights as men to vote – was that a privilege? Since then they have become entitled to equal status (but perhaps not yet equal access) as students, judges and company directors. It took a civil war in the States to erode slavery; and discrimination was still (still is, perhaps?) strong. It is cheap, I am afraid, to take – as Scruton does – Travellers and gay’s wedding cakes as the hall mark of your anti-discrimination argument. There are much more significant and larger groups whom discrimination protects.

 

My favourite discrimination is that which the zebra-crossing creates for the pedestrian over the otherwise all-powerful (subject to regulation by speed limits, taxation etc etc: yes I know…). For me the car is the supreme exemplar of Toryism and selfishness; and for any pedestrian, moving along at 3/4 mph, to be able to step out in front of and momentarily control the car driver is a true freedom. In Scruton’s terms, I think, it would be an example of outrageous, and unjustifiable, discrimination.

 

Rights to ‘Christian’ community responsibilities (or ‘socialist direction’)

 

And of benefits rights: you don’t have to be a Christian – a reading of the Bible, as a valuable historical and political text, might help – to know the parable of the ‘Good Samaritan’. This parable may be said to teach a modern liberal approach to responsibilities. It is an approach which is well over two thousand years’ old. It was this approach which informed medieval ideas of community (one of the oldest administrative law cases – Rooke’s Case (1598) 5 Co Rep 99b – establishes the modern duty of the community as a whole to provide flood defences), the Tudor poor laws (Wolsey is credited by some with initiating the first legal aid scheme); and, yes, of the shift in the 19th century from charity provided by individuals to individual rights, mostly provided by the community or state.

 

I give this last point to Scruton; but I base it (as a non-Christian) on ordinary West European impulses which I regard as wholly ‘Christian’. He might see them as ‘a socialist direction’ (see p 7 in my copy of his essay). Perhaps as a modern liberal (to be distinguished from Scruton’s ‘classical liberal’ (ie ultra conservative, as I read him)) I believe that the state should tax the rich and others with income (or, perhaps, assets as well). It should give to those (per Keynes, Beveridge): who need – the sick, children’s education; police; amenities (drainage, roads etc); those who need help with protection of rights (eg lawyers); where the environment needs protection; for defence (perhaps); and so on. In other words: in ‘Christian’ or human – civilised, may I say? – terms, all this is for the good of the community or ‘common wealth’.

 

In the two millennia since Christ (at least) rights have developed to create not only individual rights, but also community responsibilities. Scruton would see these responsibilities pared to a minimum. A modern society, I believe, should retain the claim of benefits rights so far achieved; and should continue to review them and – as need be – edge them forwards.

Vulnerable witnesses, parties and children in family proceedings

Cross-examination of victim by an alleged abuser

 

The Justice Secretary, Liz Truss, and her Ministry of Justice have woken up – at last – to the real dangers and hardship created by the present framework of certain family proceedings. The hardship has been aggravated by the cut-backs in legal aid since April 2013.

 

On 30 December 2016 a statement by Sir James Munby, President of the Family Division (https://www.judiciary.gov.uk/announcements/president-of-the-family-division-sir-james-munby-cross-examination-of-vulnerable-witnesses-in-the-family-court/) was issued by the Ministry. It followed a Guardian report before Christmas which dealt with, as it was said, the further abuse of domestic abuse victims permitted by family courts (https://www.theguardian.com/society/2016/dec/22/revealed-how-family-courts-allow-abusers-to-torment-their-victims ). The concerns raised by the Guardian and the President have lead to a report that the Justice Secretary, Lyn Truss, is looking into the problems raised (https://www.theguardian.com/society/2017/jan/04/truss-orders-review-to-ban-abusers-tormenting-victims-in-family-courts); and the Guardian has followed all this with a strong leader voicing concerns at the delay in protection for unrepresented victims of alleged abuse (https://www.theguardian.com/commentisfree/2017/jan/05/the-guardian-view-on-family-courts-cuts-hurt?utm_source=dlvr.it&utm).

 

This note concentrates – as do the Guardian articles – on the victims of alleged abuse; but the subject and the reforms needed in the family justice system go much wider; though these reforms altogether, alongside those referred to by Sir James, are together stalled by the delays insisted upon by Ministry of Justice. Reforms are urgently needed in three separate (if sometimes overlapping) areas of the work of the family courts:

 

  • the evidence of children (as distinct from their views) in their own proceedings (as in Re W [2010] (below));
  • cases where the judge may be asked to hear the views of a child; and
  • the evidence of vulnerable adult witnesses (as in eg Re A [2012] (below)).

 

Evidence of ‘vulnerable people’ in family proceedings

 

In his statement Sir James emphasised ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. He pointed out that ‘the family justice system lags woefully behind the criminal justice system’ (eg under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2, as discussed below). He said that the courts cannot act, since ‘it requires primary legislation’; and any action ‘would involve public expenditure. It is therefore a matter for ministers’.

 

The criminal justice ground work – to which the President refers – is in place under YJCEA 1999. A background to this legislation is provided, for example, by Lady Hale in House of Lords in R ((D) (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 at para [19] (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064 and Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19).

 

Lady Hale considered the specific subject of vulnerable witnesses, their evidence and cross-examination by their alleged abuser, in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948. She stressed the ‘flexible’ bases on which family courts can deal with evidence from witnesses – and by extension, children – who, it is said, had been abused by a party (eg by the father of A in Re A):

 

[36] It does not follow, however, that X [a vulnerable young adult] will have to give evidence in person…. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face….

 

In the Camberwell Green Youth Court case (above) Lady Hale explained the background to YJCEA 1999 which aims to deal with the ‘quality of a witness’s evidence’ (s 16(5)). Sections 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction: first, a witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)) and  thirdly, s 17(1) with witnesses effected by ‘fear or distress’. In the last two cases the court must be satisfied that any evidence ‘is likely to be diminished’ by the circumstances of evidence being given. In what follows ‘witness’, by analogy, will include a party (eg child, alleged abuse victim etc) in family proceedings.

 

Family proceedings and the VWCWG

 

Sir James Munby set up the Vulnerable Witnesses and Children Working Group (‘VWCWG’) in mid-June 2014. Six weeks later the Group produced an interim report which recommended a single ‘new mandatory rule [yes, a single rule] … supplemented by practice directions (PD) and guidance…’. The group did not deal with the three aspects of the issues, mentioned at the start of this article, which their brief demanded.

 

By Spring 2015 a further draft report was produced, followed six months later by draft rules (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) which were put out for consultation. And that is as far as this has been taken by Ministry of Justice. The draft rules have yet to be formalised, and a practice direction issued to support them. From Sir James’s statement it seems likely that the Ministry of Justice has now realised that resources issues arise, which were not considered in the VWCWG reports. The Justice Secretary who, we are told, has taken this on must now be aware – as her office should have been, at least two years ago – that state expense will be involved to protect victims (as is the case for those needing protection under YJCEA 1999, Part 2).

 

Youth Justice and Criminal Evidence Act 1999, Part 2

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 Lady Hale spoke of the YJCEA 1999 measures and to the way family courts might use them (emphasis added):

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Sir James Munby P says he would ‘welcome a bar’ to the ability of ‘alleged perpetrators being able to cross-examine their alleged victims’; but, a lack of ‘primary legislation’ to incur ‘public expenditure’ – ‘a matter for ministers’ – makes law reform impossible. If Lady Hale in the Supreme Court (Re W [2010] (above) and the human rights implications of legal aid legislation (per Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)) are followed, it is questionable whether this is necessarily the case.

 

Lady Hale’s statement in Re W [2010] is authoritative guidance on the current state of the law and the ‘things the court can do’. Measures in YJCEA 1999 ss 23-28 are already largely available for family proceedings. The ‘intermediary’ point creates resources implications which can depend on case management; and case management depends on whether the intermediary or other legal assistance (per YJCEA 1999 s 38(4)) can be provided on legal aid.

 

Legal aid, ‘resources’ questions and a fair trial

 

‘The questions which challenge the child’s account’ must be fairly put to the child, says Lady Hale. This is essential; ‘not that counsel should be able to question her directly’ (Re W [26]). If this is so for a child, does not the same apply for any other vulnerable witness or party?

 

If ‘fair’ questioning is the criterion, then if this cannot be done because of the effects on a witness’s evidence then can it be a fair trial if that evidence is not given through an intermediary, or if an advocate is not instructed per YJCEA 1999 s 36(4) to cross-examine the victim for an alleged abuser acting in person? ‘The court’s only concern in family proceedings’, says Lady Hale in Re A (above) at [36] ‘is to get at the truth.’ The witness – or party in many family proceedings – must be able ‘to give their evidence in the way which best enables the court to assess its reliability’; and, says Lady Hale, ‘it is certainly not to compound any abuse which may have been suffered…’

 

If obtaining the truth does not represent a trial which is fair for the victim, then her (or the child’s) European Convention 1950 Art 6(1) rights are in issue and – means assessment permitting – she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, many resources questions can be addressed under the present legal aid scheme. No immediate changes to primary legislation would be needed to take protection for victims a long way towards the added protection they need.

 

David Burrows

5 January 2017

# 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: availability of special measures for vulnerable witnesses and children

What criminal proceedings procedures offer the family courts to help vulnerable witnesses?

 

The failure of the family proceedings rule-makers to provide protective rules for children and vulnerable witnesses in family and – to an extent – other civil proceedings tends towards a failure of the government to provide a fair trial (European Convention 1950 Art 6(1)) for such individuals. Protection has been available, to a sophisticated level, for children and vulnerable witnesses in criminal proceedings at least since the introduction of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2. If it be accepted that YJCEA 1999 is mostly a codification of common law remedies, then the failure of judges in family proceedings to use them (see references below eg to Re S (Children) [2016] EWCA Civ 83 (considered further below) compounds the unfair trail aspect.

 

In 2014 Sir James Munby, President of the Family Division, set up the Vulnerable Witnesses and Children Working Group (VWCWG) – with the suggestion that three areas be reviewed in relation to the evidence of children and vulnerable individuals: (1) judge’s meeting children, (2) children giving evidence and (3) ‘vulnerable people giving evidence in family proceedings’. This group published its final report, with proposed draft rules in March 2015; but the any rules are yet to be made. The work of the VWCWG will be considered in Part 6.

 

The special measures directions considered in this chapter include the evidence of children; in part because the VWCWG proposed amendments to FPR 2010. However, the ways in which children participate in proceedings are mostly dealt with in Chapter 19 under the respective Guidances for their evidence and meeting with the judge: Guidelines in relation to children giving evidence in family proceedings of 2011 ([2012] Fam Law 70 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/FJC/Publications/Children+Giving+Evidence+Guidelines+-+Final+Version.pdf); and Guidelines for judges meeting children who are subject to family proceedings of 2010 ([2010] 2 FLR 1872, https://fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf).

 

The special measures under YJCEA 1999 Part 2 are designed to help ‘vulnerable or intimidated witnesses’ to give their best evidence. As Lady Hale explained in R (D (a Minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393:

 

[19] … The aim of the special measures is to assist vulnerable or intimidated witnesses who might otherwise be unwilling to come forward at all or unable to give the best evidence of which they are capable.

 

Scheme under Youth Justice and Criminal Evidence Act 1999

 

Youth Justice and Criminal Evidence Act 1999 (YJCEA 199) Part 2 sets up a scheme for special measures for assistance of children and vulnerable witnesses in criminal proceedings. The scheme does not apply in family proceedings; but it will be considered in some detail here, first, because reference is made to it in a number of family cases (including, most prominently, by Lady Hale in Re W (Children) (Abuse: Oral Evidence) (above)); secondly, because it is the source for a number of the proposals of the VWCWG; and, thirdly, because many aspects of the YJCEA 1999 scheme represent the common law and may be used by analogy in family proceedings without any changes to substantive law or court rules.

 

Under YJCEA 1999 s 18(1)(a), the following special measures are available – as appropriate – to help children and vulnerable witnesses.

 

  • preventing a witness from seeing a party, by ‘screen or other arrangement’ (s 23);
  • allowing a witness to give evidence by live link (s 24) (ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
  • hearing a witness’ evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
  • admitting video recorded evidence or cross-examination (s 27 and 28);
  • questioning a witness through an intermediary (s 29);
  • using a device to help a witness communicate (s 30);
  • a direction may be given to dispense with the wearing of wigs and gowns when evidence is given (s 26).

 

Eligibility for assistance: ‘quality of evidence’ – special measures direction

 

The criterion for use of special measures is that, were it not for such measures, the quality of a witness’s evidence might be impaired. The ‘quality of a witness’s evidence’ (a term adopted by the VWCWG would-be reformers) is defined, for the entirety of Part 2 Chapter 2, by s 16(5) as follows:

 

(5) In this Chapter references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.

 

YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance under Chapter 1 of the Act. YJCEA 1999 s 16(1)(a) defines a witness in criminal proceedings as eligible for assistance if under 17 at the time of the hearing fixed to consider a special measures direction. Section 16(1)(b) deals with witnesses who are otherwise eligible for assistance (ie a vulnerable witness). Section 16 provides as follows:

 

16 Witnesses eligible for assistance on grounds of age or incapacity

(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—

(a)if under the age of 17 at the time of the hearing; or

(b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).

(2)The circumstances falling within this subsection are—

(a)that the witness—

(i)suffers from mental disorder within the meaning of the Mental Health Act 1983;

(ii)otherwise has a significant impairment of intelligence and social functioning;

(b)that the witness has a physical disability or is suffering from a physical disorder.

 

YJCEA 1999 s 16(1)(b) deals with all other witnesses (ie other than children under 17), who may be eligible for assistance (ie vulnerable witnesses) and who come within the terms of s 16(2): namely that are mentally incapacitated with the terms of Mental Capacity Act 2005, or that otherwise the ‘witness has a physical disability or is suffering from a physical disorder’. Section 17(1) defines as eligible for assistance a witness where:… the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In the case of a child under s 16 or other individual under s 17 the court must consider any views of the witness concerned (ss 16(4) or 17(3)). The adult witness ceases to be eligible for assistance if s/he tells the court assistance is not required in giving evidence (s 17(4)).

 

If a witness comes within one of the categories in ss 16 or 17 s/he is eligible to be considered for assistance in the form one or more of the special measures directions set out in ss 23-30. Section 19 provides for setting up special measures directions for all witnesses who come within the provisions of ss 16 and 17 in criminal proceedings, whilst particular arrangements apply in relation to children (s 21). For all witnesses YJCEA 1999 s 19(1) and (2) provides for ordering of special measure directions and the factors the court takes into account in so doing.

 

Rights of a party to cross-examine

 

The question for the House of Lords in R (D (a Minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 was whether an accused in criminal proceedings is entitled to cross-examine a child witness in the accused’s presence within the terms as to special measures and ‘special protection’ for a child under YJCEA 1999. The House of Lords held unanimously that the nothing in European Convention 1950 guarantees face-to-face questioning and the appeals were dismissed. It is necessary only that the defence have a proper opportunity to challenge a prosecution witness. Lord Rodger explained this:

 

[15] … Article 6(3)(d) of the Convention [has not] been interpreted as guaranteeing the accused a right to be in the same room as the witness giving evidence. What matters, as Kostovski v Netherlands shows, is that the defence should have a proper opportunity to challenge and question the witnesses against the accused. The decision of the European Commission of Human Rights in Hols v Netherlands Application no 25206/94, 19 October 1996, and the judgment of the Court in SN v Sweden Application no 34209/96, 2 July 2002, confirm that these requirements can be satisfied even where, for good reason, the accused is not physically present at the questioning. Here the good reason is to further the interests of justice by adopting a system that will assist truthful child witnesses to give their evidence to the best of their ability….

 

A child or other vulnerable witness is entitled to protection from cross-examination by an alleged assailant of a young person under YJCEA 1999 s 34. In family proceedings comments of Lady Hale in the Supreme Court can be referred to in support of this proposition, as to the present position at common law. In Re W (Children) (Abuse: Oral Evidence) (above) Lady Hale spoke of ‘special measures by analogy’, and made reference to the way family courts might make use of special measures:

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot [ie Report of the Advisory Group on Video Evidence (1989). Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

However, said Lady Hale, private family children proceedings created particular pressures, such that allegations are being pressed by one parent against the other; the child is rarely a party with the protection of a guardian or legal representation.

 

[29] In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings. However, there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. On the other hand, the child will not routinely have the protection and support of a Cafcass guardian. There are also many more litigants in person in private proceedings. So if the court does reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.

 

Measures available in family courts

 

In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 Lady Hale explained how family law was already plentifully provided with means to protect vulnerable witnesses. For example, there are ways for child witnesses to avoid direct ‘courtroom confrontation’; and this could be extended ‘to other vulnerable witnesses’ (as in the case of Re A: Re A involved disclosure of the statements made by a vulnerable young adult witness (‘X’) to social workers about the child A; and the likely later calling of X to give evidence during A’s fathers claim for contact with A):

 

[36] It does not follow, however, that X will have to give evidence in person in these proceedings.… If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….

 

Alternatively questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness:

 

[36] … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.

 

Justice for an alleged abuser

 

The position of the alleged abuser or ‘accused’ – like K’s brother and father of the children in Re S (Children) [2016] EWCA Civ 83 (because special measures could not be fixed for a young person witness (K) against the father, her mostly hearsay evidence was accepted by the judge and in the light of her refusal to give oral evidence); or the father in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 – must not be forgotten. They too have rights. European Convention 1950 Art 6(1) guarantees a fair trial; and, in the case of criminal proceedings Art 6(3)(d) intends that all persons charged with a criminal offence should, as a minimum, have the right:

 

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

 

In R (D (a Minor)) v Camberwell Green Youth Court (above) the House of Lords held that the provisions of the 1999 Act did not infringe Art 6(3)(d) rights, so long as means were found to ensure that an accused or other party could put questions to challenge the evidence of an opposing party’s witness.

 

Fairness will be served – and as far as possible European Convention 1950 Art 6 complied with – if any measures in family proceedings can achieve the equivalent of YJCEA 1999 Part 2. And this is especially so where – as with care proceedings – the consequences of the process are as close to those in a criminal trial as can be in family proceedings (as occurred in Re S (above) and as Gloster LJ made clear in her dissenting judgment in that case).