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).

FAMILY LAW, LEGAL AID – AND A BRAVE NEW WORLD FOR MEDIATION

Silence of the family law legal aid lambs

The three headlines below appeared one above the other in the e-version of Law Society’s Gazette on Christmas Eve. In combination they say a lot for the state of family law – and perhaps of family lawyer’s leadership (such as the Law Society, Resolution and Family Law Bar Association) – at the start of 2015:

• ‘Grayling faces new year test over legal aid’ (the first headline) relates to the achievement of the criminal lawyers to challenge and, by oral interim hearing (an achievement in itself) to seek to persuade the High Court to suspend the tender process: a decision is expected on 30 December 2014.

• ‘Exceptional case legal aid’ relates to R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and the clutch of immigration cases which successfully – and privately (ie no help from representative bodies) challenged the Lord Chancellor’s Guidance on exceptional case determinations (ECD) under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10(3).

• And then ‘Representation slumps in family law’. That legal aid has been reduced so substantially was to be expected; but how, in truth, has it come to be so bad for financially eligible family law clients and their would-be lawyers; and how is it that representative bodies have done so little of real assistance to help their members and their members’ clients? Why, for example, is there no family law equivalent – yet – of Gudanaviciene?

Resolution’s resolution of legal aid negotiations

In relation to the headlines above, the following points arise:

(1) Gudanaviciene and ECD – so yes, where was a Resolution (or Law Society) challenge alongside Gudanaviciene (though Law Society was there for us when JG (see below) was in issue)? ECD affects family law cases quite as much as immigration cases; yet where is Resolution teaching on human rights, Law Society support for court challenge, or FLBA advocacy to rubbish the unlawfulness of the Lord Chancellor’s Guidance? If it is there, I have not heard about it. Family law cases were successfully applied for in 8 ECD cases over the early period of LASPOA 2012. Is that not testimony to the pusillanimity of many family law legal aid lawyers and their representative bodies?

(2) Statutory charge – one of the sillier 2012/3 ‘reforms’ to legal aid was that Ministry of Justice jettisoned the vast majority of its banking arm, which at times of very low interest rates was netting the tax-payer a cool 8% per annum, a massive lift on what you or I would get at Santander (even allowing for the cost of administering it). We all knew that much legal aid was only a loan, waiting for the statutory charge to bite and the tax-payer to cash-in its 8% per annum simple interest. And any associated private law children and domestic violence cases would be tacked on. I wonder what the family lawyer negotiators said to the Ministry of Justice about that at the time; and what net loss there has been to the Ministry of Justice from losing (a) that nice little uplift on interest charges and (b) the statutorily charged bits of litigation (eg child arrangements fights) which will not now be charged because financial remedy work is not legally aided.

(3) Challenge to the Lord Chancellor – on any of the above subjects, or indeed any other, Resolution has taken no active part. (Unlike the Law Society, Resolution took no open part in the family law legal aid case of JG v Lord Chancellor and ors [2014] EWCA Civ 656 so far as I know: even I sent some notes on a couple of points to the silk used by Law Society, at his request). I would guess that many of its legal aid members – and many more would have legal aid, if a statutory charge challenge had been mounted – would have liked Resolution to take the fight to the Government; but if your main negotiators are mediator this will leave your negotiations in a compromised position; one hand at least strapped behind the collective back.

The legal services order gap

For, so it is: one of Resolution’s main negotiators was Dave Emmerson OBE (he accepted a gong from the Government, and sought to represent lawyers against its latter emanation Ministry of Justice). I taught legal aid with Dave just after LASPOA came in (in May 2012). He told us all – to camera – that he thought LASPOA had finally introduced the interim lump sum in family proceedings (originally in a schedule to Family Law Act 1996: now but not then repealled). I later asked Dave where he found this provision. Silence.

I suspect he meant the new legal services orders in LASPOA ss 49-54 which, for present purposes, introduce a new s 22ZA into Matrimonial Causes Act 1973 to enable certain applicants in financial remedy proceedings to apply to the court for the other party to pay part or all of their costs. (The common law provides an equivalent provision in the form of costs allowances in other forms of family proceedings.) As far as I know none of the usual suspects above – Resolution, Law Society etc – provided any immediate education or other help to its members on the legal services order and costs allowances subject, certainly as it was being introduced in April 2013. (By that time most of Resolution National Committee had still not found out that the family court had then reached the statute book: per Crime and Courts Act 2013 Sch 10.)

Resolution and the Law Society (and, the Bar Council, I am sure) negotiated – no doubt with gusto, nay ‘resolution’ – in the run-up to LASPOA. But, there is surely a real conflict in the same organisations – especially the mediation-obsessed Resolution – espousing the parallel mediation route; whilst simultaneously – as must be the inevitable consequence – rejecting the litigation route. For litigation is a route which many of its members and their clients must tread. I doubt this conflict has been, in any realistic way, debated by – for example – the Law Society or Resolution (it did not crop up at Resolution’s 2014 AGM).

Mediation in 2015: nothing to do with legal aid or Ministry of Justice

I appreciate that much of Resolution’s efforts are to ‘#keepitoutofcourt’: to stop its member’s clients going to court. However, facts must be faced:

• There is a real issue about lawyer litigators (like me and lots of other Resolution members) working too closely, in formal business terms, with mediators. The conflict inherent in having mediators and litigators as partners in the same firm must be debated, at least.
• The failure of Resolution to come near its strap-line – ‘First for family law’ (ie the ‘law bit’) – would be laughable were it not so serious. Most of Resolution’s golden fresh eggs are hatched out on mediation projects; yet its first responsibility – it could be argued – should be to its law and court roots. The rule of family law suffers as legal aid dwindles; yet the Resolution chair adopts an approach to the law of ‘privilege and confidentiality “for dummies” (sic: see Resolution review of November 2013)’. On law Resolution members said to be ‘dummies’.
• Not every person whose family breaks down manages to settle their case out of court.

‘First for family LAW’

And so this note comes full circle. Mediation is nothing directly to do with the courts (save with consent orders in marriage etc cases). It is to do with family break-down which may – just may – involve court and litigation. Yet where family breakdown cannot be resolved by agreement – domestic abuse may make this difficult in a substantial proportion of cases, for example – court, certainly at the outset, may be inevitable. Then the ‘#keepitoutofcourt’ concept, to many court customers, sounds as if it comes from another world.

And in that real litigation world, real law, and the rule of law, and human rights and EDCs and all the inconvenient aspects of life which litigation has to pick up, come into sharp focus. ‘Black-letter’ law – a term derided by many Resolution members – becomes what keeps people protected (the lawyer’s true role; and why he or she must know the law) from wrong-doing by public authorities and by other parties to their family breakdown process.

In logic mediation and litigation must be kept separate; though like prophylactic and invasive medical treatment the mutual understanding of their practitioners is important. In 1978 when we first went to see the then Solicitor General, we though conciliation – as mediation was then called – would be state-funded, probably by the Home Office (divorce court welfare was part of probation in those days: there was no Ministry of Justice then and the Lord Chancellor had no budget to speak of). And yes, there was reckoned to be a strong law/court aspect to mediation then; though the thrust for implementation of Finer (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) came at first mostly from social workers not lawyers.

In 2015, 40 years after Finer, mediation must be parallel, not parasitic. The complementary roles of mediation and of litigation must be clearly defined; and generally mediation – in all real senses – should surely be prior? If mediation is so often in-house to lawyers – that is, under the same professional roof – separation of the distinct family breakdown roles will be difficult.

Parallel roles, separate funding

And in 2015, who really sees sense in mediation as the poor relation, and being umbilically linked to courts and litigation, or in any way funded, by the Ministry of Justice? Who, in logic (as opposed to tired old faut de mieux inertia) sees mediation as anything to do with courts and HMCTS and the Lord Chancellor? Is that not – in truth – a contradiction of what mediation seeks to achieve? It is a little like trying to eradicate smoking; but giving medical care for former smokers to the tobacco industry (not the most happy analogy; but I hope it illustrates the point?).

In the brave new lawyer-free – but law court parallel – world which it demands, mediation should have nothing to do with the tired old Ministry of Justice. And it should have nothing directly to do – if conflict rules apply – with lawyers’ practices and their important, but separate, litigation worlds (save a full and educated understanding of that world; but that is a subject for another day).

Legal aid, support for a real rule of family law and tax-payer banking measures (where property is in issue) will remain in the litigation world (the ‘telegrams and anger’ world, where mediation does the ‘only connect’ of Howards’ End: EM Forster). The world of courts and the Ministry of Justice and the newly politicised semi-literate Lord Chancellor is not a world for mediators. And negotiations for legal aid will be by people – like the criminal lawyers – who are willing to point a writ (well, a judicial review claim form) at the Lord Chancellor rather than allowing his and his department’s political voraciousness (Grayling is an ambitious political pole-cat, in the Tebbit mould) to exclude them.