LITIGANTS IN PERSON: ASSISTANCE AND THE COURTS

Consultation on McKenzie friends: the right end of the telescope?

 

The English system of litigation and of assistance to litigants faces criticism and review from two different directions: The Lord Chief Justice’s Report 2015 (January 2016 https://www.judiciary.gov.uk/wp-content/uploads/2016/01/lcj_report_2015-final.pdf) and ‘Reforming the court’s approach to McKenzie Friends: A Consultation’ (February 2016: https://www.judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016.pdf) (‘the consultation paper’). This note is concerned with the consultation and to comment on the help which may be needed by courts and parties from people trained in law at various levels. Meanwhile the comment of the Lord Chief Justice in the introduction to his Report must be born in mind as the future of lay representation is considered:

 

Our system of justice has become unaffordable to most. In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed.

 

There are a number of constants when operation of the court system is considered. These include: that the law and the procedure by which it operates can be – and often is – complex; that litigants are rarely the person best able to help themselves and frequently want help from trained professional people to assist them in court (and those people want to be paid); that judges often want assistance from a person specialist in the field being considered by the court. The last point is illustrated by Gregory v Turner [2003] EWCA Civ 183, a case which a district judge had regarded as a small claim, involving damages of £100; and a judge had rejected on appeal and awarded costs against the Gregorys. In the Court of Appeal Brooke, Sedley and Carnwath LJJ (who jointly wrote the court’s 117 paragraph judgment) said:

 

[4] Because of the difficulty of some of the matters we had to decide we sought the assistance of an advocate to the court, and Miss Lee appeared in that capacity. The Gregorys had the benefit of advice given to them by counsel instructed by the Bar’s Pro Bono Unit (although he did not appear at the hearing), and Messrs Freshfields prepared the court’s bundles on a pro bono basis. We are grateful to all of them for their help.

[5] We permitted Mr Morris to make submissions to us on behalf of the Gregorys after we had heard Miss Lee’s submissions. The council did not appear on the third application, but we had the benefit of their written submissions in the court below. We ensured that notice of this hearing should be given to the Turners’ solicitors, and we will refer in paragraph 38 below to the short written submissions we received from them.

 

That is to say, the parties had no legal representation in the Court of Appeal, though the Gregorys and the court had had some assistance in preparation; there was an advocate to the court; and there was lay assistance to the Gregorys from Mr Morris. In the final analysis the court found that the district judge and a judge to whom the Gregorys appealled had both got it wrong; but because leave to appeal from the judge had been refused the Gregory’s could take their complaint no further (§§45-46; Access to Justice Act 1999 s 54). (The justice of this conclusion, in itself, takes some subtlety of forensic mind for anyone accustomed to general concepts of fairness.)

 

Representation in civil courts

 

Traditionally parties have been represented, and courts assisted, by practising lawyers. With the withering of availability of legal aid lawyers are often too expensive for most ordinary people. Enter the ‘McKenzie friend’ (as defined by the consultation paper at §2.3: see below) whose training and ability as a lawyer is unassessed, whose status is unregulated and who, as far as is known, is generally uninsured. As will be explained, the consultation paper is based on the symptoms of judicial concern – namely, lay (ie non-qualified lawyer) representation – not the cause, namely the problems which lay parties confront with self-representation and confronted by often complex law and procedure.

 

Though well-researched, the consultation paper is a modest document. In an introduction it explains the back-ground to the subject of representation: by parties themselves, by lawyers, and by McKenzie friends. The consultation takes the view (at §2.5) that there is a ‘common law right [for an unrepresented individual’ to receive reasonable assistance in proceedings’; and defines help which may be provided to litigants in person (the consultation’s definition of a McKenzie friend at §2.3) as:

 

While LIPs conduct their own litigation individuals, known as McKenzie Friends, often help them. This may take a variety of forms from the provision of moral support, to – with the court’s permission – carrying out the conduct of litigation or acting as an advocate on the LIP’s behalf. Only at the courts’ discretion, may a McKenzie Friend be granted a right to address the court in order to help the LIP present their case to the court. The grant of such a discretionary right has become increasingly common.

 

Litigants in person: a judicial working group

 

As background to the reforms under review the consultation paper it cites a 2011 Civil Justice Council report on Access to Justice for Litigants in Person (https://www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf) and the Judicial Working Group on Litigants in Person: report (July 2013: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf chaired by Mr Justice Hickinbottom – ‘the Hickinbottom report’). Some recommendations of that report, in relation to McKenzie friends, are summarised, economically (as will be seen):

 

[3.3] The [Hickinbottom report] considered reform in its report in 2013 [at §§6.22-6.28]. It recommended that consideration be given to:

(i) rationalising the approach taken to McKenzie Friends across the courts and tribunals;

(ii) codifying in the Civil and Family Procedure Rules the practice and procedure relating to McKenzie Friends;

(iii) issuing further guidance to maximise the positive benefits, and minimise the negative effects, McKenzie Friends bring to the administration of justice;

(iv) replacing the term ‘McKenzie Friend’.

 

The consultation report says that it will consider ‘the final three recommendations’. It thereby rejects one of the more radical, and important, recommendations of the Hickinbottom report: that its recommendations should apply equally to civil proceedings as to administrative tribunals. The consultation paper rejects tribunal representation (where ‘non-lawyer representation is the norm’) as follows (at §3.4):

 

There is no evidence to suggest that would be or otherwise desirable. Or it would take the form of liberalising the approach to representation in the courts to bring it in line with the tribunals-based approach. There is no evidence that, what would in effect be, a wholesale removal of restrictions on rights of audience in the courts is beneficial or desirable.

 

And that is that: an essential line of inquiry and wide field of comparison for the subject – fully considered by Hickinbottom – is thus disposed of.

 

Reform proposals

 

Under the heading ‘reform proposals’ the consultation paper proceeds to consider and seek responses on the following (broadly following the last three of what it sees as Hickinbottom’s recommendations):

 

  • Finding another term for ‘McKenzie friend’ – ‘court supporter’ is preferred by the consultation paper (the Hickinbottom preferred ‘lay assistant’ (Part 8) is not considered);
  • Replacing the existing case law on McKenzie friend with ‘codification and practice guidance’ revision (though the paper does not state what the status of such codification should be);
  • That notice should be given to the court and to parties where a McKenzie friend is to be instructed;
  • There should be a plain language guide setting out what McKenzie friends can and cannot do, mostly so that litigants in person are properly informed as to their role.
  • That fee recovery should be prohibited – though, again, the consultation does not say what the powers to do this are.

 

These will be the main intended areas of consultation.

 

The Hickinbottom report

 

The title to the Hickinbottom report makes it clear that its main object is to see issues, including of representation, from the point of view of litigants in person (LiP), and their place in the post Legal Aid Sentencing and Punishment of Offenders Act 2012 civil justice system (Judicial Working Group on Litigants in Person: report (July 2013); and see review at  ‘Justice for the litigant in person’ 2013 Family Law, David Burrows http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub=FAMILYpa&lang=en#addHistory=true&filename=Family_FLJONLINE_FLJ_2013_09_44.dita.xml&docid=Family_FLJONLINE_FLJ_2013_09_44&inner_id=&tid=&query=&scope=&resource=&toc=false&eventType=lcContent.loadDocFamily_FLJONLINE_FLJ_2013_09_44 ). The report looks at the issues from the point of view of the LiP, and shows a real appreciation of the problems they face. It is not designed only for the judges who must deal with LIP cases. It starts from the proposition that ‘providing access to justice for litigants in person’ within a system designed on the assumption that the majority of parties are legally represented ‘poses … unique challenges for the judiciary’ (§2.5); and it works its way to a series of recommendations based around this proposition.

 

On McKenzie friends, Part 6 of the report considers their varied roles in civil litigation. It sees three types of McKenzie friend (§6.12): those who attend to give moral support; those who attend court as advocate; and those who conduct the claim in full. Each have a role, says the report; but the role of ‘lay assistants’ and terminology applicable to them must be clarified and regularised by rule or practice direction (§6.29). Consideration should also be given to what should happen where a McKenzie friend may be said to have a conflict of interest: in a family case the ‘friend’ has received confidences from both parties; or has received them from one, but then turns up in court ‘acting’ for the other spouse or partner. Procedures must cover this point.

 

It is perhaps worth looking in full at two of the report’s paragraphs summarised by the consultation (at §3.3: see above), since these give the real flavour of what Hickinbottom recommended:

 

[6.22] The Group recommends that the Judicial Office considers, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants. That review should have as its objective the issuing of further guidance – if possible, covering both courts and tribunals – that focuses on the overriding objective of dealing with cases justly and at proportionate cost, and seeks to maximise the positive benefits that lay assistants can provide to the effective administration of justice, whilst ensuring that the possible negative effects are also addressed. The Group considers that, where lay representation is allowed for a particular case, then it is vital that all are fully aware of the role the representative is playing, and the scope and restrictions on that role….

[6.23] More specifically, the Group recommends consideration of the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing: i) the exercise of the right to reasonable assistance; ii) the right to conduct litigation; and iii) the right to exercise rights of audience31. Whether by way of Practice Direction or rule or both, in the latter two cases, such provision could provide guidance as to how the court’s inherent jurisdiction to grant such rights, which is preserved by the Legal Services Act 2007, should be exercised. Such Practice Direction or rule could helpfully replace, revise or codify the present case law authorities.

 

And on ‘lay assistants’ (the preferred term for McKenzie friends) the report (in its conclusions in Part 8) recommended:

 

(viii) The Judicial Office should consider, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants.

(ix) The Judicial Office should consider, urgently, the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing:

  1. i) the exercise of the right to reasonable assistance;
  2. ii) the right to conduct litigation; and

iii) the right to exercise rights of audience.

(x) The Head of Civil Justice and Heads of Division should consider, urgently, the terminology that should be used, including whether the term “McKenzie Friend” continues to be useful.

 

Terms like ‘cases justly’ and at ‘proportionate cost’; ‘rights to reasonable assistance’ (my emphasis), ‘to conduct litigation’ and ‘to exercise rights of audience’ all come through from these recommendations. Ideas and recommendations such as these are absent from the summary in the consultation paper.

 

Looking through the right end of the telescope

 

The Hickinbottom report looks through the correct end of the telescope: at what are the needs of the LiP in the civil and family justice system and how can these be dealt with in a way which is fair to all/both parties and to the court system. The McKenzie friend is but a part of this. The consultation report looks only at this aspect; and not from the point of view either of the LiP (who seeks the help, and may be prepared to pay) or from the point of view of the lay representative, who may be sued for what s/he does.

 

The consultation makes not reference to regulation and training of these representative; of what their liability might be in damages for negligence to their own clients, and for wasted or disallowed costs (akin to Senior Courts Act 1981 s 51(6) and (7) for legal representatives); or what their duties are to the courts.

 

Surely the priorities for a scheme must recognise the real needs of the system (see the comments eg in Gregory v Turner above); and to recognise that these must be regulated. What is meant by a ‘reserved legal activity’ and other forms of ‘legal activity’ are defined by Legal Services Act 2007 s 12, and who may carry them out by s 13. That is surely a starting point – a framework – for reform in this area. That must reflect what help can be provided to the court; who may or should pay (including for insurance); and it must recognise (as Hickinbottom is very concerned to do) fairness to other parties who are not acting in person or assisted by a McKenzie friend.

 

And finally the consultation must face the reality of the Lord Chief Justice’s comment at the beginning of this article. The English system ‘of justice has become unaffordable to most’; and that ‘there has been a considerable increase of litigants in person for whom our current court system is not really designed’. To what extent could a correctly and fairly regulated system for lay representation do this?

A ‘HOSTILE’ MR JUSTICE MOSTYN, MR DOWNE AND LITIGANTS IN PERSON

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

The irritation of Mr Justice Mostyn (Mostyn J) in general, with litigants in person, and with a Mr Downe in particular, reverberates from his judgement in Bakir v Downe [2014] EWHC 3318 (Fam). It was ordered by Mostyn J to be published at public expense as a warning that he, at least, is intolerant of those who must (from force of financial circumstance), or who chose – as is their right – to conduct their own litigation was recently published, and includes:

[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.

So says Mostyn J – or he appears to say – courts are not there to help litigants in person. Unlike the ‘Good Samaritan’ – and, for that matter, many lawyers who act free (pro bono) – it is not the judge’s job, or that of the court staff, to cross the road.

Clarity and the family judge

It is not for the judge, for example, to help a layperson to understand rules (drafted, some of them, by one Mr Nicholas Mostyn). These rules can be stunning, I would guess, in their lack of ease of access for most ordinary people. Mostyn J went on:

[8] … 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 continued. He explained the Family Procedure Rules 2010 Part 18 procedure (ie ordinary court applications made in the course of existing family proceedings) in language which most litigants in person will find difficult – impossible perhaps – to understand:

[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 (italics added by me).

Undertakings and orders

The case concerned a return date freezing order injunction application (ie an order had been made, and it was coming back to court for it to be reconsidered, this time by Mostyn J). The judge said:

[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 [UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam),  Mostyn J], 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’. 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 in the Zipher quote below). Mostyn J does not mention these cases.

In the Zipher case 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 … 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.

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)? 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). Without some help from the court, where can a lay person find an idea of what the remedies might be.

Perhaps some people can understand Mostyn J’s irritation with Mr Downe; but a modern judge is not paid to be irritated by this sort of thing. By the way, I am familiar with work which is being done by the judiciary generally on how courts should deal with litigants in person: Judicial Working Group on Litigants in Person: report (Judiciary of England and Wales, July 2013) – http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf .

Family courts and a fair trail

If a family courts judge approaches a case in the way that Mostyn J did, there is a real question as to whether the court – in this case the High Court, Family Division – is complying with its duties to provide a fair trial. I have appeared before Mostyn J in a mood to ignore – or ride rough-shod – over the law, rules and existing practice guidance. I was able to put him right. I knew the rules and that rules he referred to did not exist. In the particular case (unreported) he ignored me, all the same.

Where is a litigant in person to be where basic rules of fairness, and sometimes the common law and procedure, are ignored in such a way as does Mostyn J?

English courts must comply with the Convention (Human Rights Act 1998 s 6(1) and (3)(a): ie to ensure a fair trial). If they do not they can be hauled up on appeal (HRA 1998 s 9(1)). Judicial unhelpfulness and obstructiveness towards litigants in person must rank firmly in the direction of a court’s failure to provide a fair trial.

@ResFamilyLaw: A NOTE ON LITIGANTS IN PERSON

Review: Guide to Good Practice on working with Litigants in Person (Resolution)

This homely guide, as to half of its 9 pages, more or less does what it says on the tin: it assumes its reader (‘you’) is acting for an adult parent in family breakdown proceedings. In Kitchener style prose (all addressed to an undefined ‘you’: presumably a lawyer) is takes the reader through their ‘first contact’ with a litigant in person and makes suggestions as to how s/he should conduct ‘communications generally’. For the remainder of the Guide it makes a few general points about conduct of inter-adult family breakdown litigation with occasional leavening – to make it appear relevant to its title – with references to litigants in person.

It does not do justice to its publishers. It is very short on reflection on, or more detailed development of, the very important subject in hand. For example:

• No attempt is made to consider how any unrepresented vulnerable adult parties should be dealt with
• No mention is made of what is intended by Matrimonial and Family Proceedings Act 1984 s 31F(6) (in force since April 2014), which enables the court to take over cross-examination for a litigant in person; or indeed of a litigant in person as discussed by Sir James Munby P in Q v Q (No 2) [2014] EWFC 31, 6 August 2014 (this case is not touched upon)
• There is no reference to the excellent Judicial Working Group on Litigants in Person: report (Judiciary of England and Wales, July 2013) – http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf ; nor any discussion of what that group may be up to 18 months later.

Reference to Q v Q recalls that nothing is said of perhaps the most challenging aspect of dealing with a litigant in person: in court as advocate and in preparation for trial. At such times litigants in person are likely to be at their most tense and challenging.

Or if not court: how do you encourage a person who is spoiling for a fight, to see benefit from mediation or some other NCDR? This must be a subject dear to Resolution’s heart; and rightly so. Surely a section on this for litigants in person would be valuable: who makes the first move; who contacts the mediator; and how does the lawyer overcome suspicion if the suggested mediator is a lawyer mediator? How does the mediator operate alongside any court proceedings? Should arbitration or ENE be mentioned to the LiP – an off-the-cuff MIAM?

The report is undated, so it may have come out before the Ministry of Justice paper on litigant in person http://www.familylaw.co.uk/system/redactor_assets/documents/2189/litigants-in-person-in-private-family-law-cases.pdf ; but the existence of that report, its publication long-delayed, cannot have been unknown to the author(s). Some reference to it and its conclusions would have given a little depth to an otherwise shallow document.

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.

CONSULTATION ON CHILDREN AND VULNERABLE WITNESSES: COURT PROCEEDINGS

In July 2014 Sir James Munby, President of the Family Division and a working party he had set up, published a form of consultation paper – entitled an ‘interim report’ – on ‘children and vulnerable witnesses’. They allowed two months (half over the summer period) for practitioners to respond. My comments on this consultation process is at https://dbfamilylaw.wordpress.com/2014/08/21/consultation-fairness-law-and-the-administrative-process/

The consultation document can be found at http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/

My response to the consultation follows. The suggested single rule change, I believe, is an inadequate response to the issues raised by the subject.

It is also worth reflecting on the extent to which this would be one of the topics which any forthcoming child sex abuse inquiry should consider.

RESPONSE TO CONSULTATION ON

Interim Report of the Children and Vulnerable Witness Working Group – 31 July 2014[1]

SUBJECTS OF THE PAPER: ‘PROTECTED INDIVIDUALS’

A consultation paper

  • The working group on ‘children and vulnerable witnesses’ is appointed (it is said) by the Judiciary and Tribunals Office. Its authors are described as being ‘set up’ by Sir James Munby P with aims set out in his ‘12th View’ from his chambers (4 June 2014). In what follows their ‘interim report’ will be treated as a consultation document issued by a public authority[2] – namely from the Ministry of Justice. It will be responded to accordingly.
  • Responses are sought by 3 October 2014 at 5 pm. The working group seems to be entrusted with a very important job, which affects people who are particularly ‘vulnerable’ – by definition. It is intended that its job be completed in a three weeks (by the end of October 2014) because the Ministry of Justice demands it. I believe this is unfortunate for reasons which are set out below. It is urged to take considerable care. The President himself (as will be seen below) has speculated that primary legislation may be required. This cannot be done in only a few weeks.

‘Proposals and initial recommendations’

  • Following the group’s one meeting it has put forward a variety of ‘proposals and initial recommendations’ (para 13). Whether or not the term ‘vulnerable witness’ should be used seems to be open (para 9; but see para 13(iii) which seems to close off the point again).
  • The group questions whether its work should ‘focus on reform in public law[3] and on private law cases involving domestic abuse’ (para 10).
  • In summary the initial recommendations are:
  • ‘The reforms’ should apply to all family court cases ‘from the outset’ (para 13(i))
  • There should be a new ‘mandatory[4] rule’ for ‘children and vulnerable witnesses and parties’ with PDs and Guidance to be ‘inserted’ in FPR 2010 as soon as possible (13(ii) and (iv)); and there should be ‘a new Part 4 to the FPR’[5] (13(v)). This is to be drafted by the working group with the Family Justice Council etc (13(xvi)[6]).
  • Paras 13(vi)-(vi) deal with the main content of ‘the rule’
  • Paras 13(vii)-(x) require advocates and litigants in person to identify ‘vulnerable’ parties etc
  • A practice direction for FJC[7] guidance to judges is recommended (13(xi); and the status of judicial discussions which children should be clarified (13(xii)).
  • Special measure should be made for vulnerable witnesses; and ‘the rule’ should contain details as set out in paras 13(xiii) and (xiv).
  • There should be training for judges[8] and advocates (13(xvii)-(xix)) and ‘as part of the (sic) tool-kit’.[9]
  • Responses on these three areas – the initial recommendations, the subjects of the reforms (‘vulnerable witnesses’ or otherwise) and the span or ‘focus’ of the work – as well as on other questions will be the basis of what follows.

‘Protected individuals’: in civil proceedings

  • With what subjects should the proposals concern themselves? There seems to be no reason why parties, witnesses and all relevant others involved in all civil proceedings should not be comprised in the working group’s considerations. There is no clear logic in limiting the work to the family court only. The proposals might helpfully cover any information obtained from protected individuals and in any context, not only in relation to court proceedings (though possible court proceedings must be a criterion for triggering any rule or other legislative changes).
  • Perhaps a more appropriate title for the work of the group might be something like ‘protected individuals’. These individuals would be involved or may be involved in one way or another in civil all proceedings (including, for the avoidance of doubt, family proceedings).
  • It can be seen that the aims of the group – tentatively at some points (see para 13(xv)) – include not only children and ‘vulnerable witnesses’; but also other individuals who may be vulnerable in different ways (eg because of the form of the proceedings (eg domestic abuse or forced marriage)); or because a child welfare informant (as in eg D v National Society for the Prevention of Cruelty to Children [1978] AC 171).
  • The information which is first provided by a protected individual may not necessarily be for use in court proceedings. Every effort should be made to avoid court-based terms such as ‘evidence’, ‘witness’ etc, unless the information provided by the protected individual is specifically provided for, or to be used for, court proceedings.
  • In logic the group should please consider the special position of individuals (who may later become witnesses) who require protection in other circumstances: for example, because of their relationship with one of the parties (eg the parent or child in cases of abuse by a party[10]), because of their capacity (Mental Capacity Act 2005) or because they are child welfare informants.[11]
  • Further the full spectrum of civil proceedings, not just family proceedings, should please be kept in mind throughout: the views of a child may be as important in judicial review proceedings arising from CA 1989 Part 3 (CPR 1998 Part 54), as in connection with a contact dispute between his/her parents or an application to restrain (or permit) publicity in any form of children proceedings (see eg Torbay Borough Council v News Group Newspapers [2003] EWHC 2927, sub nom Re Roddy (A Child)(Identification: Restriction on Publication) [2004] 2 FLR 949 Munby J).

Human rights: rights in all civil courts

  • At all points any public authority – local authority children’s department, health, schools, courts, police etc – must bear in mind their duties under European Convention 1950 and that they must apply Convention principles to what they are doing.[12] In many cases there will be a balance to be drawn between respect for private life (Art 8), and the right to a fair trial (Art 6(1)).
  • This consultation may need to ask, in the case of protected witnesses, whether judges and lawyers put fair trial rights too high: eg as against the right of a protected individual to respect for family and private life (as perhaps in the case of Re A (A Child)[2012] UKSC 60).
  • Do child rights, children welfare and concerns for protected individuals justify special rights in all civil courts? This is probably a separate and wider subject; but it is a dimension of what is under consideration here.
  • Rights, and in particular European Convention 1950 rights, as a distinct aspect of the consultation does not seem to have impacted upon the working group’s discussions. Perhaps training for all involved in working with protected individuals should include a clear training component on this. Such training would include as much clarity as possible on such issues and confidentiality and publicity; rights as to giving information and not; and self-incrimination privilege (where relevant).

Rules or primary legislation

  • The working group is respectfully requested to recall that a rule cannot alter the law; and thus to reflect on the extent to which their reforms seek to amend the law that it must be within the terms of powers delegated to Family Procedure Rules Committee or that primary legislation is required.

CONTENT OF THE INFORMATION FROM PROTECTED INDIVIDUALS

Information from protected individuals

  • To what information or evidence is this consultation addressed? Use of terms such as ‘witness’ and ‘evidence’ implies it is uniquely for court proceedings; or as in support of a party to proceedings. This is misleading. The likelihood is that it will not be only for court proceedings that information is gathered in the first instance, especially where it comes from children.
  • The context in which it is ultimately used – by definition and so far as this consultation is concerned – will, of course, be court proceedings.
  • It is therefore necessary to examine (1) what forms of information are involved; (2) from whom that information will come; and (3) then to consider how that information may be employed whether this is in court proceedings or otherwise.

Forms of information

  • Information which is collected from protected individuals, or where they give evidence in court and are entitled to protection, will include:
  • Information which vulnerable individuals (including children) may wish to give to public authority representatives (local authority, schools, police etc), quite separate from court proceedings (at this stage)
  • Information and views which children who are the subject to proceedings may want to provide to the court
  • Evidence which children as parties wish to give to the court
  • Protection for ‘vulnerable’ parties (parents and children who allege abuse by a party, where that party may have a right to cross-examine them)

PROTECTED INDIVIDUALS

Protection for whom?

  • The forms of civil proceedings which might involve a protected individual in any conceivable role include:
  • Children who take their own CA 1989 Part 2 proceedings and in their own right (with permission from the court as appropriate[13])
  • Children proceedings where the child is the subject of the case (ie the case is about the child and his/her family): either because parents are seeking an order in respect of the child (Children Act 1989 Part 2 (‘child arrangements’) or Part 4 and 5 (care etc).
  • Children who are accommodated by a local authority (CA 1989 Part 3) and may be involved in eg judicial review proceedings in relation to their care
  • Children who may be called as a witness in proceedings under (1) above
  • Children who may claim financial provision from a parent (CA 1989 Sch 1 para 4)
  • Family proceedings where an adult is to be cross-examined by an (alleged abuser)[14]
  • A child or adult in any civil (including family) proceedings lacks capacity
  • A protected individual (as with X in Re J (A Child) [2014] EWCA Civ 875) is required to give evidence in any of the above proceedings and to be cross-examined or to give evidence in front of an alleged abuser.[15]
  • Rules should please be framed which comprise all civil – ie not just family – proceedings.

CONTEXT IN WHICH THEIR INFORMATION IS USED

Protected parties: in what context

  • If any changes to the law are proposed – whether of primary legislation or of procedural rules (and see paras 13(ii) and (v)[16]) – then before this can be contemplated there must be a review and, so far as possible, a definition of the primary law and the courts proceedings to which procedural changes might apply. Interim rule changes could be introduced in the interim.
  • The involvement of protected parties will span their first involvement either with a public authority; or with the courts where, as the subject of private proceedings, they may wish to – or be asked to – give their views as children of age and understanding. For this section court proceedings only are under consideration.
  • All civil proceedings should be included (though it is only in a small minority of CPR 1998 proceedings that children will be involved). There is no point in having rules only applicable in family proceedings.

Cross-over with criminal proceedings

  • Protocol and good practice model, October 2013: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings[17] provides a protocol to link between care proceedings under FPR 2010 and criminal proceedings. In A Local Authority v DG & Ors [2014] EWHC 63 (Fam), Keehan J dealt with a related matter which involved the cross-over between care and criminal proceedings by a Bovale[18] ‘gap’ practice direction.
  • It is surely lazy law-making to leave such a crucial subject to a ‘protocol’ and ‘gap’ directions. Surely it justifies clear primary legislation (where need be) with all necessary delegated legislation – ie court rules, which cover both criminal and care proceedings.

Protected individuals as witnesses

  • Where protected individuals are called as witnesses what protection can they expect from the court? This may include:
  • Special arrangements for their evidence to be given
  • Some form of clear public interest, or other immunity, for individuals who have given information which relates to child protection
  • Protection from cross-examination by an abuser or other hostile litigants in person[19]
  • In appropriate circumstances some form of closed material (or other evidence) procedure may be called for;[20] though this will require primary legislation, on the basis of Lady Hale’s comments in Re A (A Child)[2012] UKSC 60.[21] It is a substantial subject which requires further detailed consideration. It was considered eg in A Chief Constable v YK and Others [2010] EWHC 2438 (Fam) [2011] 1 FLR 1493, Sir Nicholas Wall P.
  • This subject is also considered also under child welfare informants below.

HOW IS PROTECTION TO BE ACHIEVED?

Ways in which information may be obtained and put before the court

  • This section requires consideration of how information is obtained in the first place; and, if it is required as part of court proceedings, how it is deployed in court. In particular the rights and welfare of the particular protected individual must be born in mind.
  • Further in any such consideration of a child who is a protected individual it is likely always to be necessary to balance their welfare rights against any rights to a fair trial pleaded by a party to proceedings.
  • How should the rights of protected individuals generally be balanced against the rights of other involved in court proceedings? Should their rights be the same as those of children?
  • In the case of children: if a balance is required to be struck between their rights and the Convention rights of a party to court proceedings (ie Convention ‘proportionality’), the House of Lords and Supreme Court have said that this must be conducted by measuring ‘the nature of any impact on the child’ (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 (at para [17]).
  • The interests of the child are as much a primary consideration for the LAA decision-maker as for any other agency (eg the parole board or Home Office) (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and (say) the right of a parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 the primacy of a child’s interest was explained by Lord Kerr:

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

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

Relaxing of hearsay rules

  • Hearsay rules are already relaxed by Children (Admissibility of Hearsay Evidence) Order 1993 Art 2 in relation to children proceedings.
  • Two immediate questions arise from this:
  • Does the working of this Order need review in relation to children proceedings; and
  • Should its provisions be extended to all proceedings involving protected individuals and their evidence?

Inquisitorial process for protected individuals

  • Is it desirable to have an inquisitorial process (akin to old-fashioned interrogatories) for the evidence of protected individuals; and if so how would that operate? Thus, should a party who wishes to ‘cross-examine’ a protected individual be required, for example, to submit questions through the judge who would then have the power to edit them within terms that would provide a fair trial to the questioner Balanced against the welfare or other rights of the protected individual?
  • The extent to which a judge should see a child is considered in ‘Children who want to provide information’ (below); but it must be born in mind that different rules will be required where a child is a witness of fact (and called by one or other party to give evidence); and where the judge or the parties (including the child) feel it is appropriate for the court (judge or magistrates) to see the child.

CHILDREN WHO WANT TO PROVIDE INFORMATION

Talking to the judge

  • Most of the considerations in the working group’s paper in relation to court proceedings will be in the context of contested court proceedings. In addition there will be many cases where a child ‘of age and understanding’ wishes to speak to the judge; or where the judge may want to be sure that a child’s views have been made clear to the court before a decision is made.
  • A Practice Note of April 2010 – Guidelines for judges meeting children [in] family proceedings[22] – deals with how judges may be able to permit children to feel more involved in their proceedings. The purpose of the Note is described as:

The purpose of these Guidelines is to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.

  • The Note stresses that the purpose of the meeting is not for the ‘gathering [of] evidence’ by the judge (para 5). This aspect of the guidelines, in particular, was considered by the Court of Appeal in ###.

CHILD WELFARE INFORMANTS

  • The status of members of the public, family members, neighbours and others provide information to the child protection authorities (police and social workers) is the subject of conflicting House of Lords/Supreme Court decisions. There is no question that police informants have protection. In D v NSPCC[23] the evidence of the informer was said to be covered by public interest immunity.
  • The working group may wish to consider recommendations, which might involve primary legislation, to clarify the position of and protection for those who provide information which helps to protect children. This might include statutory immunity and treatment of the informer’s evidence (eg as hearsay).
  • The conflict between the rights of the informant as seen by the House of Lords in D v NSPCC and by the Supreme Court in Re A [2012] will surely need to be resolved by primary legislation?[24]

CONFIDENTIALITY OF INFORMATION OF PROTECTED INDIVIDUALS

Confidentiality and human rights

  • The confidentiality of statements and other information of protected witnesses is, inevitably, tied in with the parallel ‘transparency’ consultation now under way at the urging of Sir James Munby P. This raises immediately the questions of whose confidentiality and in what context? It would surely be sensible to join up or co-ordinate relevant aspects of the two projects?
  • The evidence of protected individuals is inevitable bound up with their confidentiality. This in its turn raises issues in relation to European Convention 1950 Arts 6(1) and 8; and perhaps Art 10. It is not clear from its initial recommendations to what extent the working group have the special issues on confidentiality and protected individuals in mind. It is to be hoped that this will be carefully considered and that their particular rights will be balanced against any Art 6(1) arguments.

LEGAL AID AND THE PROTECTED INDIVIDUAL

  • The extent to which a party to proceedings who wishes to cross-examine a protected person is the other side of the litigants in person coin. Perhaps this can be the subject of recommendations from the working group to Ministry of Justice which would guarantee a degree of public funding where a party otherwise would act in person, and who wishes legitimately to cross-examine a protected individual.
  • This was considered in outline by the President in Q v Q [2014] EWFC 31 (on 6 August 2014), is considered by me in ‘State funding for family proceedings after Q v Q’ in Family Law News;[25] and is the subject of my forthcoming series in Family Law starting in October 2014. That series concludes in December 2014 with suggestions as to how the President’s state funding ideas might work in practice.
  • The working group may be aware that concerns at reductions in legal aid and its effect on cross-examination of protected individuals has surfaced in the broad-sheet press at least once under the headline ‘Domestic violence victims are being forced to face abusers in court ordeal, lawyers warn’[26]. This then leads on to the next subject.

LITIGANTS IN PERSON

Litigants in person dealing with protected individuals

  • How does the court protect a protected individual who is to be cross-examined by his/her alleged abuser? This is more frequent now that legal aid is increasingly less available for a parent or alleged abuser; though they are someone who is entitled to cross-examine a witness who makes allegations against them as the law now stands.
  • A question the working party will wish to address is how the rights of a protected individual should be balanced against those of an alleged abuser to a fair trial. In a slightly different context this was considered by the Supreme Court in Re A (A Child)[2012] UKSC 60. In that cases Lady Hale considered that each of the parties – the child, the father and the mother – had fair trial rights; and that each of them and X (the child welfare informant) had rights to respect for family life (Art 8). Any rights which X had in relation to not to be subjected to degrading treatment (Art 3) were discounted by the court.
  • How should the rights under Art 6 and 8 be balanced? Lady Hale replied:

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

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

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

  • The right to a fair trial for the family overrode the rights of X. This was not the same as the conclusion in D v NSPCC, and it is not the same basis for a decision as in police informant cases (see eg Marks v Beyfus (1890) 25 QBD 494; Powell & Anor v Chief Constable of North Wales Constabulary (Case No: CCRTI 1999/0904/B1) CA 1999 WL 1142622).

Role of the court in cross-examination

  • In the family court a judge – and presumably, a bench of magistrates – are formally given power to take over examination in chief or cross-examination of a witness ‘in the interests of the party’ seeking to examine. Matrimonial and Family Proceedings Act 1984 s 31G(6) provides as follows:

(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.

  • Sir James Munby P has considered the operation of s 31G(6) in Q v Q (No 2) [2014] EWFC 31 (see paras [69]-[79] set out below). He discusses this provision but makes no findings. Perhaps the central passage in his discussion is

[75] … does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.

  • I respectfully agree; but I do urge the working group to recommend the necessary primary legislation which will protect – in all civil proceedings – the victim from being examined/cross-examined by the perpetrator.
  • The next step will be to consider whether this is to be by the court, or by a ## to the court; and if the latter at whose expense? By what criteria will the judge need to consider appointment?

EUROPEAN CONVENTION 1950 – A HUMAN RIGHTS ACT 1998 BALANCE

Effects of European Convention 1950 on reforms

  • A number of the reforms contemplated by the recommendations and the discussion above inevitably involve Convention considerations. In Re X the requirement of a fair trial could be seen working against the interests of an informer. The working group will need to consider whether this strikes the right balance in respect of protected individuals. Can the ‘primacy’ (peer Lord Kerr above) of their interests be said to come above the rights of parties to proceedings to a fair trial?
  • Where a vulnerable individual may be at a disadvantage against one without disabilities, they have a right to a fair trial. Convention jurisprudence is that they must not to be put at a disadvantage in relation to an opponent (de Smith 7-118). This takes the discussion back to legal aid and the second of my articles in Family Law (due for publication in November 2014).

[1] http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/: response by 3 October 2014

[2] ie broadly within the terms of the Cabinet office guidance on consultation documents of 5 November 2013 https://www.gov.uk/government/publications/consultation-principles-guidance

[3] The term used by family lawyers to connote care proceedings; though in this note other areas of ‘public’ or administrative law will require to be considered (eg Children Act 1989 Part 3)

[4] A rule cannot be other than ‘mandatory’?

[5] This proposal is not explained. Part 4, at present, covers the full spectrum of case management in family proceedings

[6] But not, be it noted, with FPRC or any practitioner groups such as Resolution or FLBA, whose practitioner input could prove invaluable; though FPRC, it seems, are expected to rubber-stamp ‘the rule’ change at a meeting ‘at the end of October 2014’ (para 14)

[7] It would be interesting to know what constitutional status the WG accords to the Family Justice Council

[8] And lay justices?

[9] What is a ‘tool-kit’ in the context of practice or training, and where does it derive from in this context?

[10] H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J, Q v Q (No 2) [2014] EWFC 31, Sir James Munby P

[11] As with X in Re A (A Child) [2012] UKSC 60 and Re J (A Child) [2014] EWCA Civ 875; but see also D v National Society for the Prevention of Cruelty to Children [1978] AC 171, (1977) FLR Rep 181 considered at ** below

[12] Human Rights Act 1998 s 6

[13] FPR 2010 Part 16

[14] See also MFPA 1984 38G(6) and below

[15] This may raise additional questions about whether there should be any special protection, guaranteed by law, for child welfare informants: and below

[16] One ‘mandatory rule change’ seems to be envisaged. As will be seen this is hopelessly inadequate even on the limited reform canvass proposed by the working group

[17] Set out eg in Family Court Practice 2014 at p 2977

[18] Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171

[19] See eg comments by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 and of Munby P in Q v Q (No2)

[20] See separate notes; though such a procedure was considered and its uses doubted by Lady Hale in the Supreme Court in Re A (see nn below)

[21] [34] It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34[2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28[2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a “gist” of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case.

[22] [2010] 2 FLR 1872, Family Court Practice 2014 p 2933; http://www.fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf

[23] D v National Society for the Prevention of Cruelty to Children [1978] AC 171

[24] This subject is considered by me in full in Family Law [2014] February at ‘Disclosure, Privilege and public interest immunity: Public interest immunity’

[25] http://www.familylaw.co.uk/news_and_comment/state-funding-for-family-proceedings-after-q-v-q-private-law-public-funding-part-1#.VDFO5vmSz7w

[26] eg report in Independent of 5 October 2014 http://www.independent.co.uk/news/uk/crime/victims-of-domestic-violence-forced-to-face-abusers-in-court-ordeal-9774958.html

CONSULTATIONS IN PROGRESS PER PRESIDENT’S 13TH FENESTRAL MUSING

Family procedure: consultation under way

In his short period in office Sir James Munby P has made reform of the family court system a distinctly personal affair. Following Sir James’s 13th fenestral musing (13th View from the President’s Chambers: The process of reform: an update http://www.familylaw.co.uk/news_and_comment/13th-view-from-the-president-s-chambers-the-process-of-reform-an-update#.U_BvDfmSwmF ) there are probably as many as five (perhaps more) consultations under way:

• ‘Transparency – The Next Steps: A Consultation Paper issued by the President of the Family Division on 15 August 2014’ see eg http://www.familylaw.co.uk/news_and_comment/transparency-the-next-steps-a-consultation-paper-issued-by-the-president-of-the-family-division-on-15-august-2014?utm_source=Familylaw.co.uk&utm_medium=Twitter#.U_BeuPmSwmE
• Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ http://www.familylaw.co.uk/news_and_comment/interim-report-of-the-children-and-vulnerable-witnesses-working-group-31-july-2014#.U_BomfmSwmE
• Draft standard orders – for a compendium of these see http://www.familylaw.co.uk/news_and_comment/family-court-draft-standard-orders#.U_BrnfmSwmE
• As ‘Report of the Financial Remedies Working Group – 31 July 2014’ http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF
• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

There are also other straws in the Presidential wind as seen from his window, including:

• Expert evidence after Children and Families Act 2014 s 13
• Legal aid after Q v Q (No 2) [2014] EWFC 31: ‘what is to be done?’ says the President.
• Divorce; and its separation from the family procedural system

At this stage I can only urge caution at the speed with which the results of these consultations are pursued; for, as with a car which is driven too fast, speed can cause injury – in this case, to bring the metaphor back to family courts, to children and others who cannot protect themselves against the President’s ardour. Momentum must surely be preserved; but that is not the same as haste. Reflection is important. Ill-considered haste breeds mistakes. Not only will bad reform decisions be made; but then children and other vulnerable individuals – who deserve protection in the family court system – may be hurt.

Protected witnesses: breadth of reform

The initiative which most affects the welfare of children in the above list, I would suggest, is that on what is called ‘vulnerable witnesses’. The working group, it seems with Sir James’s encouragement, wants to produce one rule change to cover this subject – yes, only one, they say.

If ‘vulnerable witnesses’ – I should prefer the wider concept of ‘protected individuals’ – are to be given the rights and help they need in a system of fairness for families (not only for children) a number of the other subjects cross over into reforms. Such subjects would include: the rights/demands of litigants in person (see eg H v L and R [2006] EWHC 3099 (Fam) and the President’s own Q v Q (No 2) [2014] EWFC 31); and confidentiality issues which arise from the transparency consultation paper. Is the working group speaking of ‘vulnerable witnesses’ only; or do they not, in reality, mean a much wider group? Do they not mean parties and witnesses – two quite different procedural components – who may in fact be ‘vulnerable’? Do they mean children who want to talk to the judge dealing with their case, who are not ‘vulnerable’ at all: they just want to be heard? Do they – or should they? – mean the vulnerable child welfare informer like the unquestionably ‘vulnerable’ X in Re A (A Child) [2012] UKSC 60?

These questions – and a variety of others – raise issues much wider than the working group seem so far to have considered at their one meeting (from which they have already produced ‘proposals and initial recommendations’: how open is the door on this ‘consultation’?). Rule changes – if of family proceedings only (but why not do the job properly and cover all civil proceedings?) – will be required to Parts 4, 16, 21 and 22 (better still one pervasive FPR 2010 Part). Substantive law changes may be needed – eg a definition of ‘protected individuals’; the position of litigants in person; perhaps a role for advocates to the court and rights for the child welfare informant – which were overlooked in the rush to get the meagre provisions of Children and Families Act 2014 part 2 onto the statute book.

And yes, much needs to be done on legal aid – help for funding of family proceedings. The President asks ‘What is to be done’? He or his office, I respectfully suggest, could start by reading some thoughts from this author at ‘Possibilities for state funding after Q v Q’ – http://wp.me/4jaDx and ‘State funding family cases after Q v Q; Re B; Re C [2014] EWFC 31’ – http://www.familylaw.co.uk/news_and_comment/state-funding-family-cases-after-q-v-q-re-b-re-c-2014-ewfc-31#.U_B14_mSwmE .