DECLARATORY RELIEF IN FAMILY PROCEEDINGS

Children Act 1989 and declarations

In Re JM (A Child) [2015] EWHC 2832 (Fam) (07 October 2015) Mostyn J dealt with a ten year old child who needed urgent medical treatment, and who seemed to have been returned to Poland by his parents. The judge made the order sought on application by ‘A NHS Trust’ (‘the Trust’) supported by ‘A local authority’ and the child’s guardian. Save for a possible issue over jurisdiction between England and Poland all that was uncontroversial.

As far as I can tell from the report, the issue of procedure for such applications was not raised before Mostyn J. If that is right then Mostyn J’s comments (at §§[20]-[29]) are obiter – ie not binding.  That said the rest of this note goes to those comments. They will be hard to follow in the absence of clear procedural rules (which I deal with later).

Mostyn J’s view is that the Trust should proceed by seeking an order in the Family Court as a ‘Children Act 1989 s 8’ application (see §[26]). However if ‘final binding declarations’ are sought – as here – then application must under CA 1989 s 8 with an application for ‘declaratory relief under the inherent jurisdiction’ (§[27]). (At this point Mostyn J had already given the trust permission to apply under Children Act 1989 s 10(2)(b) (§[20])). He reasons that the inherent jurisdiction route is better for the parents since, he asserts, they will be entitled to legal aid (he does not reflect on the legal aid merits issue if they seek to defend a case so medically sound as this one).

There is no power under the Children Act 1989 to proceed by declaration.

Practical questions

Two immediate practitioner problems arise from this:

  • The source of a court’s power to make declarations
  • How to apply for declaratory relief under Family Procedure Rules 2010

The source of the courts power to grant a declaration is common law. It is explained by Lord Scarman in Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 at 177 etseq, [1985] UKHL 7, [1986] 1 FLR 224 and, more recently, by the Court of Appeal in Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387. Insofar as the High Court has an inherent jurisdiction to make a declaration so too does the Family Court (Matrimonial and Family Proceedings Act 1984 s 31E(1)).

And how to apply? FPR 2010 sets up its range of application as did the mediaeval civilian lawyers: as actions on the case which must be moulded by the pleader to fit his case. There is no specific rule which provides an originating summons procedure, save a combination or FPR 2010 Pts 8 and 19; and that is the route the practitioner must take.

The applicant seeks relief under the inherent jurisdiction of the court over children. Once that threshold is achieved Mostyn J’s analysis becomes muddled: the relief is covered by the inherent jurisdiction. Children Act 1989 s 8 may help to provide the form; but as he says (§[25]) ‘the architects’ of CA 1989 did not have in mind an application by a NHS Trust. I suspect they did; and they left it – as Mostyn J should have done – to the inherent jurisdiction. (I am afraid I have not checked those Law Commission booklets written by Commissioner Brenda Hoggett (now Lady Hale), to make sure what the Law Commissioners did have in mind on this.)

Generalia specialibus etc

Oh and I checked the generalia specialibus non derogant [the general cannot derogate from the special] point Mostyn J picks up at §[22] from Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 per Lord Cooke at 627. He was talking about rules in relation to shipping contracts… No wait, it’s a nice point. If Parliament has made specific provision, a general principle cannot override it:

If, however, there were any prima facie conflict between the general provisions of article IV, r. 3 [of the Hague Rules] and the special provisions of article IV, r. 6, it would seem to be almost a classic case for applying the maxim generalia specialibus non derogant [the general cannot derogate from the special]. This would not be to treat article IV, r. 6 as free-standing: quite the reverse. It would be to conclude that on a fair reading of the Rules as a whole article IV, r. 6 must take priority over article IV, r. 3. Further reasons supporting that conclusion as representing the likely intention of the drafters have been given by my noble and learned friends, and it would be superfluous to repeat them. I would add only that the generalia specialibus maxim, as its traditional expression in Latin indeed suggests, is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage. It falls within the category explained as follows in Bennion’s Statutory Interpretation, 2nd ed. (1992), at p. 805:

‘A linguistic canon of construction reflects the nature or use of language generally. It does not depend on the legislative character of the enactment in question, nor indeed on its quality as a legal pronouncement. It applies in much the same way to all forms of language … Linguistic canons of construction are not confined to statutes, or even to the field of law. They are based on the rules of logic, grammar, syntax and punctuation; and the use of language as a medium of communication generally.’

The problem with Mostyn J’s citation of Effort Shipping is that he cannot himself make up his mind (see §§[24]-[26]) whether the statutory, or the common law, route is correct. I say common law; but Mostyn is muddled on that too. And the passage he cites from Family Court Practice 2015 (page 1762 cited in §[20]) is only looking at the issue in the context of care proceedings.

Where a High Court judge expresses a half-formed opinion on a subject where he has not – I suspect – heard argument, it is surely unhelpful? This is so especially where he does not finish the job by giving clear procedural guidance to those who must issue these applications often at very short notice indeed.

The diffidence and good humour with which Lord Scarman traversed the procedural territory in Gillick ([1986] 1 AC 112 at 177) is in contrast with that of Mostyn J; and Lord Scarman’s words still merit attention as to the private rights to use the common law declaratory powers of the High Court. A hospital may be the applicant; but the private rights of a child – ie private law – are in issue.

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…and a small voice in me wept for justice

Open justice principle and ECHR

The most recent addition to the Family Division bench McDonald J could be heard uttering – in H v A (No2) [2015] EWHC 2630 (Fam), McDonald J (17 September 2015) – the following (and, as I read it, a small voice in me wept for justice):

[26] Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and (italics added), accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of the European Convention. In some cases other rights will also fall to be placed in the balance.

McDonald J had just quoted this ‘succinct’ summary from a judgment of Sir James Munby P in on the subject of privacy in family proceedings in Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 as follows:

[21] What may be called the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child… So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

[22] The court has power both to relax and to add to the ‘automatic restraints’. In exercising this jurisdiction the court must conduct the ‘balancing exercise’ described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47… This necessitates what Lord Steyn in Re S, para [17], called ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention)…. As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para [25], it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para [33].

Common law and exceptions to the OJP

Look at the italicised passage above, again. According to Toulson LJ (in a passage not cited in either of the above two Family Division citations) the roots of the open justice principle (‘OJP’: and we are talking children law here, so it is exceptions to the OJP we are concerned with) are the common law, simple and pure:

[1] … Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

Though only three years old that passage has been approved at least three times in the Supreme Court: Kennedy v The Charity Commission [2014] UKSC 20, A v British Broadcasting Corporation [2014] UKSC 25 and Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700. The common law roots of the principle can be seen from way before European Convention 1950 jurisprudence; and were stressed in such cases as Scott itself and Attorney General v Leveller Magazine Ltd [1979] AC 440.

Toulson LJ concluded his judgment 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.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that Magistrates Courts were created by an Act of Parliament is neither here nor there. So for that matter was the Supreme Court, but the Supreme Court does not require statutory authority to determine how the principle of open justice should apply to its procedures.

He allowed the Guardian’s application to be permitted to read documents read by the district judge (magistrates’) before making her decision.

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

In Attorney-General v Leveller Lord Scarman stresses the common law point that it is for the judges in their inherent jurisdiction to determine exceptions to the rule, save where it is determined by statute (the point made by Munby P above). The child law jurisdiction has been treated, at common law (largely derived from wardship), as an exception; just as equity dictates that there should be an exception, if to publicise the subject matter of the dispute (eg patents) would destroy it; and national security can dictate privacy to proceedings (discussed fully in Leveller). These principles are noted in Administration of Justice Act 1960 and Civil Procedure Rules 1998 r 39.2(3); but they are not defined by them – any more than they are by European Convention 1950 jurisprudence.

A common law root: does it matter?

This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion: anyone who wants chapter and verse on that is welcome to ask me).

So yes, McDonald J’s was plainly the correct decision; but I do urge him and all his brothers and sisters on the bench to be aware of the source of their powers. A simple and sound introduction is Scott tempered by Scarman (especially) in Leveller. (He cites a nice case of a ward whose details were publicised – Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA including Scarman LJ – and William Deedes of the Daily Telegraph (orse ‘Dear Bill’) was not sent to prison, nor even was he in contempt. Nicholas Wilson (now Lord Wilson etc) was in it, being led by Waite QC (later LJ).

Re F is a live piece of law, though rarely cited, on the issue of whether Administration of Justice Act 1960 created new law, or declared the old. In effect the Court of Appeal held it declared the old; and that remains the case today; which brings this note full circle.

I would say, respectfully, that McDonald J should have said:

[26] …outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights defined by the common law, rather than under ECHR…

…. But then, who am I to say?

SEXUAL RISK ORDERS AND THE INHERENT JURISICTION IN CHILDREN PROCEEDINGS

Hayden J: another view on child sex exploitation

London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam), Hayden J (judgment on 21 July 2015) is important for at least three reasons:

  • Hayden J defines the inherent jurisdiction of the High Court when it comes to a judge’s power to restrain alleged sexual abuse by one or more individuals against a child; and in so doing
  • He reviews the role of local authority in obtaining child sexual exploitation orders and the earlier Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014) of Keehan J.
  • The existence and scope of sexual risk orders under Sexual Offences Act 2003 s 122A (in force since the Birmingham case) was confirmed.

In December 2014 in Birmingham CC v Riaz (above) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl. He held that he could make the order in his inherent jurisdiction on an application by AB’s local authority relating to the child sexual exploitation (‘CSE’) inflicted on her. He recognised that the step taken by him was radical. His order is set out in full in Redbridge v SNA (at §[3]) and formed the basis of the Borough’s application to Hayden J.

Keehan J’s order had included the following: that the male defendants may not:

  1. e) Approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station…
  2. i) Cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

SNA’s advocate criticised this formulation (§§[16]-[18]): the orders are not related to the child the subject of the application and are contrary to the philosophy of the children jurisdiction, she said. This jurisdiction relates to a particular child and, in the case of wardship, where the child issues cannot be resolved under Children Act 1989.

Background facts

The background facts were that care proceedings had been started by Redbridge in August 2014 in respect of SA, a girl aged 17, AA a girl of 14, AN and ZA (boys aged 10 and 6). SNA is the father of the boys and stepfather of the girls. In December 2014 HHJ Sapnara concluded a fact finding hearing and made findings against SNA: of systematic grooming of SA over a number of years from a very young age; use of violence and eventually rape per vagina and anus. He judgment included the following: ‘SNA is a highly manipulative abuser of a child’ (§§[21]-[22]).

SNA was referred to Dr Shaun Parsons (a consultant forensic psychologist) who concluded that SNA’s behaviour ‘is evidence of a deviant sexual interest and towards a sexual assault against pubescent and older pre-pubescent and adult females’ (§[23]).

Inherent jurisdiction of the High Court

The judge took time to reflect; and in particular to explain his own view of the High Court’s inherent jurisdiction. Earlier he had summarised Keehan J’s views on the jurisdiction, especially:

[5] [Keehan J] recognised that the use of the inherent jurisdiction has been very significantly curtailed by Children Act 1989 s 100 and that a local authority may not apply for any order under it without [leave. He] went on to consider what the modern scope and ambit of the inherent jurisdiction might extend to. He noted the observations of Waite LJ in Re M and N (Minors) [1990]:

‘… the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.’

Hayden J’s survey of the operation of the inherent jurisdiction in relation to children sees him balance its use in the Family Division in children proceedings against its use in judicial review. He starts:

[33] … The concept of the ‘inherent jurisdiction’ is by its nature elusive of definition. Certainly it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’. But it is not ‘ubiquitous’ in the sense that its reach is all- pervasive or unlimited.

But he then explains the need for the courts to exercise the jurisdiction ‘sparingly’ (which recalls another judgment of Waite LJ in Thomas v Thomas [1995] 2 FLR 668, CA: the discretion of a court in financial relief cases is in theory almost limitless, says Waite LJ; but (at 670): ‘For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that “it is excellent to have a giant’s strength but tyrannous to use it like a giant.”’) Hayden J says:

[33] … Precisely because its powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.

He then looks at a little of the jurisprudence of the Administrative Court in children matters, and in particular looks at its ‘interface’ with the family courts and Court of Protection:

[35] Not only is the scope of the inherent jurisdiction restricted but the interface between the Family Court or the Court of Protection and Public Authorities is subtle. Thus the High Court may try to persuade a Public Authority to act in a way which the court considers to be in the best interest of the child but it must not allow itself to be utilised to exert pressure on a public authority see: R v Secretary of State for Home Department ex p T [1995] 1 FLR 293 [Court of Appeal: Staughton and Hoffmann LJJ and Sir Roger Parker].

[36] The development of judicial review, as illustrated by ex parte T (supra), has also served to curtail the exercise of the powers of the inherent jurisdiction. No power be it statutory, common law or under the prerogative is, in principle, unreviewable. The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary.

He concludes, of the inherent jurisdiction in children proceedings, as follows. Firstly:

[36] … It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.

Secondly, he held:

[37] … that to extend the scope of the inherent jurisdiction to children who are neither known nor subject to any proceedings, is to go beyond the parameters of its reach. However well-intentioned the ambition to prevent child sexual exploitation generally, this is ultimately to make a utilitarian calculation of social policy. The framework within which such children should be safeguarded and protected is for Parliament to create and for the Courts to enforce.

And finally, he says,

[45] Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf [Redbridge is outside] the scope of this Court’s powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in the Birmingham case.

Sexual risk orders

All was not lost. Sexual risk orders under Sexual Offences Act 2003 s 122A are now available since the Birmingham case (as explained by Hayden J at §[46]); and this enables the police to take proceedings for an order, namely where:

(2) … the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

Proceedings were under way in the magistrates’ court against SNA. The Redbridge application was therefore dismissed, and in the end the judge decided he could not accept an undertaking from SNA pending the outcome of the s 122A application.

We now have two judicial views on the inherent jurisdiction. Both are from cerebral judges, who both deserve genuine respect. Applications for sexual risk orders may make render largely redundant a definition of the inherent jurisdiction in this children context. It remains a live subject. The views of these two judges in the inevitable further debate will be loud in any discussion.

INHERENT INJUNCTION JURISDICTION OF HIGH COURT

Some ‘protean’ power…

In Mostyn J condones non-disclosure (https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ) I explained why the judge’s guidance in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam) could be regarded as a ‘cheats charter’. The same case and the judge’s comments on inherent jurisdiction injunction orders now merit review.

UL v BK was a case of a return date freezing order application in the High Court in which Mostyn J refused to make the order applied for; and for present purposes I do not query that decision. However, in so doing the judge felt it necessary to review the history of the statutory provisions which preceded Senior Courts Act 1981 s 37 (powers of the High Court to grant injunctions) and thus to review what he considered to be his jurisdiction to make an injunction order in the context of the wife’s application.

SCA 1981 s 37(1) provides that ‘The High Court may by order (whether interlocutory or final) grant an injunction…in all cases in which it appears to the court to be just and convenient to do so’. This statutory provision – as Mostyn J asserts – restates earlier statutory sources. In origin it derives from Parliament’s definition of a pre-existing state of affairs in law (well, strictly speaking, in equity): ie for centuries the High Court had had an inherent jurisdiction to make injunction orders.

High Court’s ‘hybrid’ powers

Mostyn J however, found that his powers were ‘hybrid’; and that such powers could only be exercised by reference to ‘the authorities decided under it’. Use of some ‘wider protean inherent power’ was therefore not permissible to a judge:

[14] It can therefore be seen that the power to grant an injunction, while placed on a statutory footing by [SCA 1981] s 37, does not derive solely from the legislature. Rather, it is a hybrid creation of the old equitable power and 19th century statutory intervention. Therefore, I do not consider that it is a solecism to refer to the power deriving from the inherent jurisdiction of the court. That said, the power is clearly defined and regulated by s37 of the 1981 Act alone, and therefore its exercise can only be effected under that section and the authorities decided under it. There is no scope for the use of some other wider protean inherent power (even if such exists, which I doubt) whether in the Family Division or the other Divisions. And the principles concerning the exercise of the power must be identical in whichever Division the relief is sought (italics added).

If this passage alone were to be followed it would seem to sound the death-knell for any form of High Court inherent jurisdiction. Search orders (Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12, [1976] Ch 55 now in Civil Procedure Act 1997 s 7(1)) and freezing (Mareva) injunctions insofar as they were made alongside the predecessor sections of s 37(1) would not be permitted.

Form this stand-point Mostyn J went on to consider the sources of the jurisdiction he was being asked to operate. Though there was no need for him to make any findings on the point, since he intended to exercise his discretion against UL, he explained why he considered he was entitled to find that the Court of Appeal and Anthony Lincoln J were wrong: that he – a puisne judge – was entitled to find that the Court of Appeal had made a decision per incuriam.

Stare decisis and the single judge

Before looking at Mostyn J’s findings two legal principles need to be clarified. The first is that of stare decisis and the extent to which a court can disagree with another’s decision; or the extent to which a puisne judge may flatly disagree with the Court of Appeal.

In general the Court of Appeal cannot review its own decisions: if it did the law would be uncertain. A finding that an earlier court had failed to consider a statutory provision might justify, as happened recently in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, that an earlier decision be reversed; for that decision had been made per incuriam (ie in error). An overlooked statute must provide higher authority which is binding on the later Court of Appeal (see per Lord Greene MR in Young v Bristol Aeroplane Co Ltd [1944] KB 718) and would avoid the party against whom it had been overlooked having needlessly to go to the Supreme Court to establish the point. However, this does not mean a High Court judge can try do the same of the Court of Appeal.

Secondly, in relation to ‘financial relief’ proceedings under Matrimonial Causes Act 1973, s 37(2)(a) provides as follows

(2) Where proceedings for financial relief [ie under MCA 1973] are brought by [A] against [B], the court may, on the application of [A] – (a) if it is satisfied that [B] is, with the intention of defeating the claim for financial relief [of A], about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;…

In UL v BK Mostyn J considered a number of statutory sources for the jurisdiction he regarded himself as being asked to apply. He failed to consider one or two sources: he makes no mention of the modern codification of the freezing injunction in Civil Procedure Act 1997 s 7(1) (codifies the freezing orde (formerly named after Mareva Compania Naviera SA v International Bulk Carriers SA, The Mareva [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep. 509, CA).

He summarised the statutory position as he saw it thus:

[15] I now turn to the question whether there is a difference in the test to be applied when ruling on an application for a freezing injunction depending on whether the application is made under s 37 Supreme Court Act 1981 or s 37 Matrimonial Causes Act 1973.…
[16] [Counsel for the wife] argues that my view that the two tests are congruent “does not accord with the test within the inherent jurisdiction (balance of convenience)” and is contrary to earlier authorities. The authorities are Roche v Roche (1981) Fam Law 243, Shipman v Shipman [1991] 1 FLR 250 and the speech of Lord Mustill in Harrow LBC v Johnstone [1997] 1 FLR 887.

He continued by finding that Roche v Roche had been decided per incuriam because, in his opinion (it is not part of the ratio of his decision in UL v BK), the judges had not referred to a variety of case law – ‘the Mareva jurisprudence’ – which he would have expected them to mention.

He finds that Shipman was ‘wrong’. Of this he says:

[27] It is noteworthy that in Roche none of the Mareva jurisprudence was referred to by the Court of Appeal in its judgments. With some trepidation I conclude that the judgment was per incuriam the many principles governing Mareva injunctions, which even by then had been developed.
[28] In Shipman v Shipman [1991] 1 FLR 250 the wife sought an order under s 37 Matrimonial Causes Act 1973 restraining the husband in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings. Lincoln J held that the terms of s37 had not been satisfied. But he went on hold, expressly relying on Roche, that it was wrong to believe that “there is no longer any inherent jurisdiction to freeze assets which may be put beyond the reach of the applicant.” He further went on to hold that:
“Counsel for the husband urges me to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions, and to assimilate the use of, and procedure for, injunctions in the Family Division to those in commercial Law. In my view the matrimonial field calls for a different approach. To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions, however genuine and well-disposed to the wife his present state of mind may be. Both he and the assets are out of the jurisdiction. Left without a job, and with new responsibilities, he will be faced with a temptation to eat into the whole of the fund.”
[29] I have to say, with great respect, that inasmuch as this decision follows Roche it too was per incuriam. Further, I do not shrink from saying that to the extent that it suggests that the restrictions and safeguards developed in the Mareva jurisprudence do not apply in family proceedings then the decision is wrong (emphasis added).

This article cannot ‘shrink from saying’, respectfully, that Mostyn J has misunderstood the bases for the jurisdictions considered in Roche and Shipman. He finds to be wrong what it must be assumed – and can indeed quite reasonably be assumed – that the judges plainly do understand what Mostyn J says they have got wrong. They find in accordance with the law and in the separate exercise of their discretion, that there are separate aspects of this jurisdiction. These separate aspects are well illustrated by the two cases. The making of an injunction orders is a matter for the court’s discretion. Secondly, there is a difference between a statutorily created remedy (eg MCA 1973 s 37(2)(b)); and a remedy which is part of the inherent jurisdiction, but which may later have been declared or codified by statute (CPA 1997 s 7(1))

‘The injunction must continue’: Shipman

Shipman illustrates the jurisdiction point very simply. A husband was to go to live in the US before completion of the couple’s ancillary relief proceedings; and he proposed to take with him his redundancy fund. Of this situation Anthony Lincoln J said, in effect: ‘I cannot find that Mr Shipman is ‘about to…’ breach s 37(2)(a). However, I feel uncomfortable about his plans (as quoted above). I am a High Court judge. I have inherent jurisdiction to make an order – not a Mareva order, freezing world-wide assets – but just this fund, in this country till the ancillary relief issues are resolved.’

This was not an order defined – or confined – by statute; nor could it be. Anthony Lincoln J was exercising a discretion vested in a High Court judge (just as did the Court of Appeal when they developed the Mareva and the Anton Piller jurisdictions). And such a jurisdiction may well be called upon increasingly in the 21st century to freeze electronic information and cyber assets of a form or forms which no statutory drafting could possibly predict at this stage.

Prerogative jurisdiction: judicial discretion

In both cases the judges exercised their discretion, within bounds accepted by the law at the time (and in relation to matrimonial property, much as it is now). A recent example of a fresh injunction jurisdiction created by Keehan J, a child sex abuse case in Birmingham – Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) in December 2014 – provides an excellent example of the use of by a High Court of his inherent jurisdiction. In that case, Keehan J – controversially, it must be said – made an order against 10 men who had been sexually involved in a variety of ways with a seventeen year old girl. Of his power to do this Keehan J first cited Waite LJ:

[45] In Re M and N (Minors) [1990] 1 All ER 205 at 537 Waite LJ said:
‘the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages’.

He took this as a basis for finding the otherwise novel orders he intended to make, could be made within the limits asserted by Waite LJ:

[46] I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent [child sexual abuse] strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self-imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

SCA 1981 s 37 creates the modern reference point for the jurisdiction. Its roots – in this case, the parens patriae jurisdiction (ie powers of the court also in wardship) – lie centuries earlier. It is those roots which provide the reference point for the inherent powers of the High Court, not the most recent attempt by Parliament (where such attempt exists: in Keehan J’s instance it did not) to codify a much older equitable or common law jurisdiction.

LITIGANTS IN PERSON: BEWARE

Court: not an ‘advice bureau’ for litigants in person

Mostyn J’s July 2014 judgement in Bakir v Downe [2014] EWHC 3318 (Fam) was transcribed at public expense because Mostyn J wanted to make a point about use of the court not being an advice bureau. The passage which has been – and doubtless will continue to be – quoted extensively already, is as follows:

[8] The courts are now being visited with an increasing number of informal applications made by litigants in person. As I have said in this case, Mr. Downe acts as a litigant in person by election [ie he has the means to pay but chooses not to]. I am taking the opportunity in this judgment, which will be transcribed at public expense and placed on Bailii, to explain, both for the benefit of Mr. Downe and for any other litigants in person, that the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed for the procedure that is prescribed for all applications that are made to the court. The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land.

Mostyn J then went on to explain the FPR 2010 Part 18 procedure in language which most litigants in person – and some modern lawyers – will struggle to understand; and which make assumptions which may come close to breaching European Convention 1950 Art 6(1):

[9] [The Part 18 procedure] requires an application to be made. It requires a fee to be paid. It requires a draft order to be supplied. It requires the relief that is sought to be clearly specified. None of that has happened here. Even now I am unable to understand what relief Mr. Downe is seeking in circumstances where his complaints are entirely academic by virtue of the fresh undertakings given to Moor J. on 27th June 2014. As I have already said, but I reiterate, there is no requirement for an undertaking which is given in the face of the court and recorded in the transcript to be separately recorded in a general form of undertaking (emphasis added).

There was nothing for Mostyn J to decide (as he says); though he deemed an application and then dismissed it with costs against Mr Downe. The note issued by Mostyn J, and its publication at public expense, was an indulgence to satisfy his irritation at his clerk being inconvenienced. The case raises further issues.

Undertakings and orders

The case concerned a return date freezing order injunction application where, says the judge:

[1] … I was doubtful whether the relevant criteria for making an ex parte freezing order, as summarised and explained by me in the case of UL v BK [reference below], had been met.  However, the Respondent husband offered me in court an undertaking to preserve two funds [set out]….

[2] On that basis counsel for the wife, Mr. Mitropoulos, drafted an order containing that undertaking and in accordance with the usual practice drafted a general form of undertaking for Mr. Downe to sign.  Mr. Downe, however, refused to sign the general form of undertaking.

The judge went on to confirm that the signing of the form ‘is not a requirement for the giving of an effective undertaking.  That undertaking had plainly been given in the face of the court’. He had already set out his exchange with Mr Downe in para [1].

If authority for this proposition is required it can be found in Zipher Limited v Markem Systems and Technologies [2009] EWCA Civ 44 and Hussain (cited below). In Zipher Lord Neuberger MR said:

[19] An undertaking is a very serious matter with potentially very serious consequences. It is a solemn promise to the court, breach of which can lead to imprisonment or a heavy fine. Accordingly, there should never be room for argument as to whether or not an undertaking has been given. … Accordingly, any undertaking should be expressed in full and clear terms and should also be recorded in writing.

[20] None of this is either controversial or original. Unsurprisingly, it is well established. In Hussain v Hussain [1986] Fam 134, Sir John Donaldson MR said at 139H that “an undertaking to the court is as solemn, binding and effective as an order of the court in like terms”. He went on to observe at 140E that “it is in all cases highly desirable that any undertaking to the court shall be recorded and served on the giver personally”. As he immediately went on to say, the “most obvious and convenient way … is to record the undertaking in an order of the court …”. Neill LJ took the same view, stating at 142A-B that “the general practice to be adopted” was that the “undertaking should be included in a recital or preamble in the order of the court”, which should be issued and served on the person who gave the undertaking with a penal notice. He went on to emphasise the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached. Ralph Gibson LJ agreed with both judgments.

As can be seen the requirements of FPR 2010 as to signature (eg at Practice Direction 33A: as is well known a practice direction cannot change the law, as set out in Hussain) is beyond anything that the common law requires.

If judges drew up the orders themselves and ensured that their order was endorsed with a penal notice, sealed and served – if possible before the undertaker (sorry, but that is what s/he is) leaves court – then many of the problems which arose in this case would have been avoided. After all in these days of unrepresented litigants presumably the courts are becoming used to drawing up their own orders, and to serving them for parties.

‘…explained by me in the case of UL v BK…’

The quote above is a reference to UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam) in which Mostyn J again was not dealing with any live issue: he made clear at para [7] of a 80 paragraph judgment that the wife’s claim was hopeless. Most of the rest of what he said was obiter and consists of some dangerous assertions of his views and gratuitous guidance to practising lawyers (Imerman documents (after Imerman v Tchenguiz and ors [2010] EWCA Civ 908 and the cheat’s charter about which I wrote in https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ .)

Now is not the time to examine in detail Mostyn J’s discussion – for that is all it is – of the law in that case. He confuses inherent (codified in Senior Courts Act 1981 s 37: what he calls a ‘hybrid’ jurisdiction), with statutory, jurisdiction (as in Matrimonial Causes Act 1973 s 37(2): ie by which a new remedy is created) to grant an injunction. On the basis of his confusion he proceeded to say that the Court of Appeal and two of his brother puisne judges got the law wrong (including Anthony Lincoln J, who well understood the difference between inherent and statutory jurisdictions in Shipman v Shipman [1991] 1 FLR 250).

He then spent some 30 paragraphs explaining what should be done; and repeated what is in such text books as Family Court Practice (eg under FPR 2010 Part 20, to which he could have referred practitioners). He concluded with his gratuitous and unprincipled guidance on ‘illegitimately obtained documents’.

Family Procedure Rules 2010 Part 18: European Convention 1950 Article 6

What will a litigant in person make of the word ‘relief’ (see para 9 above)? For many it is associated with passing wind or more. The modern word is ‘remedy’, which accords with the original Latin ubi jus ibi remedium (where there is a law, there must be a remedy). And where can a lay person find an idea of what the remedies might be; and, more to the point, and so they get their application on the road, what draft orders there might be to seek those remedies. I can understand Mostyn J’s irritation with Mr Downe; but a modern judge is not paid to be irritated by this sort of thing.

If judges approach cases in the way that Mostyn J did, there is a real question as to whether the Family Division is complying with its duties to provide a fair trial. I have appeared before Mostyn J in a mood to ignore rule, practice guidance and everything else. He asserted principles of procedure which were not true (and he knew it, though would not have the grace to admit his errors). I could put him right: I knew the rules and that rules he referred to did not exist. Where is a litigant in person to be where the law is ignored in such a way? (Two QCs appeared before him in UL v BK and seem to have let him get away with it; or, in fairness, for the mangled wife there was no possibility of appeal.)

English courts must comply with the Convention (Human Rights Act 1998 s 6(1) and (3)(a)); and if they do not they can be hauled up on appeal (HRA 1998 s 9(1)). Judicial unhelpfulness and obstructiveness towards litigant in person must rank towards failure to provide a fair trial.

‘… the procedure laid down by the law of the land…’

It would be pedantic to point out that procedure is not ‘the law of the land’; but the point is worth making. Modern Family Division and family court judges are slack with their regard for the vires of the rules and of what they are doing. (Three examples appear above; and Mostyn J’s assertions about hybrid jurisdiction and his failure to think through the results of his Imerman guidance are examples of this).

It is worth recalling always what is law, what is procedure which guides the law, and what is mere direction and guidance which should only supplement rules. A litigant in person cannot be expected to know all this. Lawyers should do so and challenge the rule-makers where needed. Judges – if they are to provide a fair trial – should be willing to do the same. If they do not the rule of law in family courts will wither increasingly and unlawfulness – eg Sir James Munby P’s Alsatia (see Richardson v Richardson [2011] EWCA Civ 79) – will thrive.

WARDSHIP

Powers of the local authority to apply to the High Court

 

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

 

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

 

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

 

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

 

Local authorities and wardship

 

Children Act 1989 s 100 provides as follows:

 

100 Restrictions on use of wardship jurisdiction

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

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

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

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

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

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

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

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

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

(5) This subsection applies to any order –

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

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

 

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

 

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

 

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