Family proceedings: a ‘watchdog’ role

20170407_154512Legal bloggers to attend court

 

On 1 October 2018 a new scheme was unveiled which enabled ‘legal bloggers’ with the right qualifications and paperwork to go into family courts (see Family Procedure Rules 2010 (FPR 2010) Practice Direction PD37J). These courts would otherwise be closed to them because the hearings concerned are ‘in private’. Thus bloggers (per the new FPR 2010 r 27.11(2)(ff) amended into FPR 2010 r 27.11(2)) are added to the list of those able to attend court.

 

Generally, no one is allowed into a family court except the parties, their representatives, witnesses, ‘officers of the court’ and so on (r 27.11(2)(a)-(e)). In addition, the rule says that for hearings in private the following may also come into court (with (ff) added by the recent PD37J) (‘court attenders’):

 

‘(f) duly accredited representatives of news gathering and reporting organisations;

(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits to be present.’

 

Why are they there? The general common law rule is that English justice must be dealt with in open court. This was explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (in a case about release of hearings documents to a newspaper):

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. 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….

 

A ‘watchdog’ role

 

Taking his lead from Bentham, when the original version of r 27.11(2) came in, in Re Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR 1467, Sir Mark Potter P described the role of the ‘watchdog’ press under the new rule:

 

[38] The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the court. Thus the position has been created that, whereas the media are now enabled to exercise a role of ‘watchdog’ on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.

 

What is needed to give a real watchdog, and Benthamite, role for the media and others – eg legal bloggers – who attend family proceedings trials (per FPR 2010 r 27.11(2)(f)-(g))? I suggest the following:

 

  • The whole point of a ‘watchdog’ role – as envisaged by Bentham – is to keep judges up to the mark. Those with the privilege of attending court under r 27.11(2) must bear that in mind: it is the judges as much as anyone whom they are keeping an eye on; and they should take on that role accordingly. For example, how many cases from circuit judges in care proceedings in the past year (a) get permission to appeal; and (b) result in appeals being allowed and the appellate court being publicly critical of the circuit judge/ I hear few watchdogs commenting on that state of affairs.

 

  • Access to hearing documents before a hearing, so that the person attending court has a good idea what is going on, much as if that person was in open court (Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795; and see Court documents: Part 1 – to make sense of family court proceedings and the following three articles on what may be released from hearings).

 

  • Someone – the court, the applicant? – should ensure that a basic outline of the facts and any law principles in issue in any individual case is available to the court attender: but only where the case is one which is listed to last (say) for more than one day.

 

On this basis the family proceedings watchdogs can start constructively to review and comment on what family courts judges are doing in our name, and as Jeremy Bentham envisaged.

 

The critical question will be: to what extent are lawyers who attend hearings willing to be frank in their views of the ways individual judges deal with family cases? Will they be prepared openly to disagree with what judges do; and will any legal journals be willing to publish content which is openly critical of individual judges? For example:

 

  • What of the judge who case managed a defended divorce case by allowing evidence only from the parties themselves (overlooking the need for corroboration); and restricted the period of marriage over which the petitioner’s evidence (Owens v Owens [2018] UKSC 41)? And what of the unfortunate petitioner whose lawyers permitted this to happen?
  • Or the judge who failed to ensure that a 15 year old, who made sex abuse allegations against a father, had her allegations tested by or on behalf of the father (Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83, [2017] 1 FLR 1476) before he was deprived of contact with his small child, without challenge to the evidence of the 15 year old.
  • Care order made within three weeks of the application at a case management hearing (all parties agreed the appeal should be allowed): Re S-W (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 2 FLR 136

 

Will blogger watchdogs raise concerns at the way domestic abuse hearings (mostly Family Law Act 1996 Pt 4) are routinely heard in secret by family courts. On the same facts any prosecution will be heard in open court; and the common law would expect them to be heard in public?

 

Will legal bloggers ‘keep the judge himself while trying under trial’ as Bentham envisaged of open court trials? It is a heavy duty on behalf of the rest of us, as envisaged by Bentham and Sir Mark Potter P.

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Non-molestation and open court hearings

Is it the law that family court injunctions be heard in open court

 

In A child and the open justice principle I asked why the ‘child’ Charlie Pearce must – rightly, surely? – have his name published after his attempted murder trial (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); whilst, for example, the names be kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). I continued: why are parents whose children, at their hands, protected sometimes from serious harm are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who investigated for serious crimes but not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49.

 

Most startlingly, a man (say, ‘R’) can be brought anonymously (ie ‘in private’ or secretly) before the family courts for often dire forms of ‘molestation’ of their partner or children (Family Law Act 1996 (‘FLA 1996’) Pt 4); yet R, if prosecuted, will be dealt with in open court, on the same facts. Are the family courts, it might fairly be asked, trying to keep R’s behaviour secret? Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors? If R breaches any injunction, this will be dealt with in public – though not in family proceedings – as a criminal offence FLA 1996 s 42A.

 

Family proceedings: hearings ‘in private’

 

The rule in family proceedings since April 2011 is said to be that all proceedings covered by Family Procedure Rules 2010 (‘FPR 2010’), save where otherwise ordered or the rules say something else, are to be in ‘private’ (r 27.10(1)). ‘In private’ means that ‘the general public has no right to be present’ (r 27.10(2)).

 

Two important common law principles are in play here:

 

  • That all hearings must be in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; affirmed in eg European Convention 1950 Art 6.1), unless administration of justice or eg the welfare of children (as now summarised in Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(3)) requires confidential (or ‘private’?) hearing. What is meant by ‘private’ was explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565
  • The law cannot be changed by a rule save where statute permits: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said at [27]: That rules cannot ‘change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)[1965] Ch 1210’ (Senior Courts Act 1981 s 51(1) which permits rules to create substantive law on costs is an example of the exception).

 

The passage (italicised below) with which Lady Hale agreed was from Lord Denning MR where he said in Re Grosvenor Hotel, London (No 2) [1965] Ch 1210 at 1243 (of an attempt by rule-makers to change the law on public interest immunity):

 

The truth must be faced that, if this rule is within the powers of the Rule Committee to make, the hands of the judges are tied. They have no option but to act on [what] the Minister or of the permanent head of his department [says]. What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land. The law as to Crown privilege is not mere procedure or practice. It may perhaps be said to be a rule of evidence, but I would rank it higher. It is a principle of our constitutional law which is to be observed in the administration of justice, not only when a witness is called to give oral evidence, but also when a party is called upon to give discovery…. If this rule only states the existing law, there is no harm in it. But if it gives the government departments a veto on the production or inspection of documents — to a greater extent than that which is warranted by law — the rule is, in my opinion, bad.

 

Delegated legislation and Parliamentary will

 

At this point one judicial canard – with respect to, for example, MacDonald and Mostyn JJ – must be laid to rest. Both those judges have given judgments which suggest that Parliament have somehow ‘expressly provided’ for a change in the law from open court to private hearings for all family proceedings (save where for eg divorce hearings they are in open court) by the fact that the Lord Chancellor’s Family Procedure Rules Committee has changed the rules.

 

Such express provision of Parliament is not so. Like the majority of delegated legislation, rules are made under the negative resolution procedure (Courts Act 2003 s 79(6)). Only one set of such legislation has been queried by a member of either House in the last 37 years. Courts Act 2003 ss 75 and 76 make it clear that it is the rules committee which makes the rules, not – even under any constitutional law fiction – that Parliament has done the job.

 

Thus in HRH Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor [2017] EWHC 3095 (Fam), Macdonald J said of the rules on a number of occasions words to the effect of:

 

[87] … In this regard, I note again that Parliament has expressly provided in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation…

 

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J spoke of Parliament specifically maintaining proceedings in private (which seems to be in direct opposition to what Lord Denning MR said over 50 years ago: it is rule-makers not Parliament, who – in reality – make the rules):

 

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

[15] … It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog….

 

Parliament did not even contemplate the ‘implied undertaking’. It is not mentioned in FPR 2010 at all. It is mentioned in rule form in CPR 1998 r 31.22 (intended to reverse the former rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). Formally that rule does not apply in family proceedings. What precisely the ‘implied undertaking’, and whether Harman still applies, in family proceedings is muddled. Probably it is best described, for family proceedings, as in line with CPR 1998 r 31.22 (see discussion in Family Court Practice 2017 under FPR 2010 Pt 21).

 

Rule in Clibbery v Allan

 

Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565 concerned whether Ms Clibbery could pass documents which she received from the respondent in proceedings under FLA 1996 Pt (an unsuccessful occupation order application), so far as they were not covered by the ‘implied undertaking’ not to release documents required to be produced under compulsion of (then) ‘discovery’. In a frequently cited case and agreeing in the outcome with Munby J below (Clibbery v Allan [2001] 2 FLR 819) the Court of Appeal (Dame Elizabeth Butler-Sloss P with whom Thorpe LJ agreed) held that though the hearing was in ‘private’ documents could be released by Ms Clibbery to the press. Anonymity seems not to have been in issue.

 

Dame Elizabeth explained the term ‘private’ – as distinct from open court and ‘secret’ or ‘confidential’ – as follows:

 

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

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

 

This tri-partite division remains the common law position in family proceedings; and on the Grosvenor Hotel principle it cannot be changed by delegated legislation. It is not altered by such cases as Appleton v Gallagher and Luxembourg v Luxembourg since these do not apply in the case of Family Law Act 1996 Pt 4.

 

Family Law Act 1996 Part 4, anonymity and ‘private court’ hearings

 

Subject to the ‘implied undertaking’ (or CPR 1998 r 31.22) point, the law would seem to be as in Clibbery v Allan. That as the Court of Appeal had explained in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, ‘privacy’ means that, space permitting, the public are allowed into a court held in private (after all the words of r 27.10(2) do not prevent asking for permission: that is how it works with any situation where a person has no right, but can ask to come in, all the same).

 

Thus a frightened ex-partner or spouse can invite friends or family to come to court with her. They do not need special permission and the court can be asked to make room for them. Whether the press and others – eg to see how any successor to Prison and Courts Bill cl 47 works in practice – can come into court: that awaits another day, another discussion of this absurdly complex area of law. There seems to be no logic in the same facts being dealt with in ‘private’ (if not in secret) in a family court, but in open court in criminal proceedings; but logic does not rule family law when the open justice principle may apply.

 

And anonymity: surely that cannot truly be in question? The names of mother and Mr JM – especially in the Court of Appeal – should surely be public. To that extent, at least, family courts need not afford secrecy to those who molest or otherwise abuse their partners, children or other members of their family – unless publicity of their names might be jig-saw linked back to any children concerned.

Contempt: administration of justice, and private lives

Interference with administration of justice

 

The law of contempt applies in all fields of court proceedings: civil and criminal. It requires the alleged contemnor to be responsible in some way with the administration of justice. In this article it comes as civil contempt (moved over very quickly: ie disobedience of court orders); criminal contempt: holding the system up to ‘obloquy’ (see below); and publication of information in relation to private proceedings.

 

On 3 November 2016 the Divisional Court (Lord Thomas LCJ, Sir Thomas Etherington MR and Sales LJ) handed down a judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’: the EU withdrawal case). Since then there has been some raucous reporting of comment from newspapers whose editorial line supported EU withdrawal. This included the Daily Mail whose headline, the day after the judgment, described the judges as ‘Enemies of the people’.

 

A dictionary definition of contempt includes references to feelings that a person is worthless or not worthy of respect. Within that it is likely that most people would say the Daily Mail headline was contemptuous of one or more of the judges in Miller. At law more is needed.

 

‘Fair and temperate criticism is legitimate’

 

The law of contempt is based on preventing interference with the administration of justice. It was considered fully in Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 1974 where the House of Lords considered whether the proposed publication by the Sunday Times of their heavily disapproving views of the proposals put forward by Distillers (manufacturers of the drug thalidomide) for settlement of litigation on behalf of children effected by the drug.  Lord Reid defined the origins of the law of contempt as follows (at 294E):

 

The law on this subject is and must be founded entirely on public policy… and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.

 

He went on (at 296D) drawing attention to the need for balance between justice and freedom of speech: ‘There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations’.

 

Lord Simon spoke in a similar way of the balancing of rights in Attorney-General v Times (at 319H): that:

 

[It is not] sufficient to say that, under our constitution, freedom of discussion is itself a creature of the rule of law, and that the administration of justice must therefore be paramount in every situation of actual or potential conflict. Each is a genuine interest of society, and neither can be held to be universally paramount over the other;…

 

‘Fair and temperate criticism is legitimate’, said Lord Reid (at 297H). ‘Anything which goes beyond that may well involve contempt of court.’

 

Forms of contempt

 

So what does freedom of expression permit? Lord Morris (at 302A-C) summarised his view of contempt as against freedom of expression:

 

The phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits…. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest.

 

Lord Diplock (at 307H-308) explained the difference between ‘civil contempt’: the disobedience to a court order by one party to proceedings; and ‘criminal contempt’ (at 308C-D) is, he says:

 

… the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.

 

And (at 310G)it extends to:

 

….to conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law, by holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his ease before they have been determined by the court or the action has been otherwise disposed of in due course of law.

 

Contempt: public dissuasion from litigation

 

In Attorney-General v Times Lord Diplock distinguished between private pressure to discourage litigation (permissible) public ‘obloquy’ to discourage legal action (not permissible: ie criminal contempt). Lord Diplock pointed out that in Merchant of Venice it would have been permissible privately to discourage Shylock from insisting on his bond; but to do so publicly where ‘he was seeking to enforce in a court of competent jurisdiction legal rights to which he was entitled under the law as it existed at that time … would have been a contempt’. Lord Diplock continued (at 313E):

 

In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so. The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court, the latter is at least a technical contempt, and this whether or not the abuse is likely to have any effect upon the conduct of that particular litigation by the party publicly abused.

 

This disparagement of a litigant is what happened in Attorney-General v Hislop [1991] 1 QB 514. Two articles had been published in Private Eye about Sonia Sutcliffe (SS; wife of the ‘Yorkshire Ripper’). When the hearing of SS’s action was imminent, two further articles defaming her were published. After she had been awarded damages in the first action the Attorney-General issued committal proceedings. The judge considered that the articles did not cross the contempt line: there was no risk of prejudice to the jury. The Attorney-General appealed.

 

The Court of Appeal said there had been a ‘serious contempt’, which went ‘beyond fair and temperate criticism’ (at 527D and 528D). Its content was plainly intended to put pressure on SS to give up her litigation. Nicholls LJ (at 532C-D) echoed the words of Attorney-General v Times:

 

Part of the mischief of this particular type of contempt is the impact which publication of articles of this nature can be expected to have on other litigants. As Lord Reid said in Attorney-General v Times … (at 295): “Of course parties must be protected from scurrilous abuse: otherwise many litigants would fear to bring their cases to court.” Likewise Lord Diplock said, at p. 310: “If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy … potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established.”

 

Contempt: privacy of court proceedings

 

A third form of contempt was envisaged by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 as exceptions to the open justice principle (though in Scott the House very clearly rejected privacy – and therefore that contempt could arise for private proceedings – in that divorce case). Privacy may be directed by the court or required by court rules (eg Civil Procedure Rules 1998 r 39.2(3); Family Procedure Rules 2010 r 27.10). This includes proceedings in relation to children and individuals who lack capacity (Mental Capacity Act 2005; ‘protected parties’ as explained below). Viscount Haldane in Scott v Scott (at 437) said of these exceptions:

 

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

 

The exceptions to the open justice principle where privacy may be ordered are reflected in CPR 1998 r 39.2(3) setting out when the open justice principle (all proceedings to be in open court: and see r 39.2(1)) may be overridden and the hearing may be in private (an emphasis on the ‘may’: the court still has a discretion). A hearing may be in private if:

 

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

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

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

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

 

This article is concerned primarily with children and protected parties (ie ‘a party, or an intended party, who lacks capacity to conduct the proceedings’: CPR 1998 r 21.1; FPR 2010 r 2.3). Prominence is given to them under Administration of Justice Act 1960 s 12(1) which – in negative terms – is (as relevant here) as follows:

 

12 Publication of information relating to proceedings in private

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

(a)where the proceedings –

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

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

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

(b)where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;…

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).

 

It is not necessarily a contempt to publish information as to proceedings in private, save in the excepted cases (including civil proceedings) in s 12(1); and even then it may not be contempt if it was not a contempt before s 12 was in force (Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370 per Lord Brandon at 420F): for example, if there is a defence in law such as that the publisher did not know of the of the existence of the proceedings (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA).

 

A third form of contempt

 

Concern for children and contempt come together in Re F (orse A) (a Minor) (Publication of Information) (above) in the Court of Appeal (Lord Denning MR, Scarman and Geoffrey Lane LJJ) heard Waite LJ (as he became) leading Lord Wilson (as he then was not) for the Official Solicitor; Leon Brittan represented Slough Daily Mail; and Sir Peter Rawlinson QC for the Daily Telegraph. The application was by the OS to commit ‘Dear Bill’ Deedes and the editor of the Slough Mail in relation to a ward of the court.

 

Lord Denning introduced the facts of the case as follows:

 

This is about a distressed father and mother. They have an errant daughter who has worried them greatly. Last year, 1975, when the daughter was only 15, and still at school, she got into the clutches of a man much older than herself. He was about 28. He was a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair. He was one of a “hippy” gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15. She thought that she was in love with him.

 

F’s parents made her a ward. An outcome of those proceedings was that the girl was provided with a home by the local authority; but they (with support from the Official Solicitor) wanted to allow her still to see the man. The parents were extremely unhappy and contacted the Telegraph. The journalist was told by the parents that the wardship order was only temporary. He contacted the Official Solicitor and was told the same.  The Telegraph published a story which was also picked up by the parents’ local paper.

 

Tudor Evans J found that there had been contempt. The Court of Appeal disagreed. They said that Administration of Justice Act 1960 s 12(1) was a codification of existing law. It must be treated as a clarification of the pre-existing law (as Scarman LJ (at 99) and Geoffrey Lane LJ (at 105) read s 12(4)). A contempt was only committed if the newspapers knew that their reports contained information relating to children proceedings (per Scarman LJ at 100), which – said the court – they did not.

 

The court’s view of the law in Re F was considered by Lord Bandon in Pickering v Liverpool Echo (above). P was convicted of manslaughter with sex offences and had been detained in a mental hospital. To secure release he must apply to a tribunal. He suspected that newspapers might publish information about his application; and he applied for an injunction to stop them. The judge rejected his application. The Court of Appeal by a majority made a reporting restriction order but gave the newspapers leave to appeal.

 

Lord Bridge (at 421D-422G) explained Re F and its assessment of AJA 1960 s 12 – and approved what Scarman LJ had said – as follows:

 

[The court] rejected the view that the effect of the exceptions in section 12(1) was to constitute the publication of information relating to proceedings in the excepted categories an absolute offence of contempt. Scarman LJ said, at 99: ‘I cannot read the words ‘of itself’ in subsection (1) as implying that in the five excepted cases contempt is necessarily committed if the court sits in private. The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law.’ I agree with this.

 

He then went on to look at the question of ‘material protected from publication’ (at 422A). On this subject, Lord Bridge refers to two statements. First Scarman LJ:

 

As I read the section, what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the ward, but not to the proceedings, there is no contempt: …

 

In support of this proposition Scarman LJ, in Re F, cited Re Martindale [1894] 3 Ch 193 where Ford Madox Ford (then ‘one Hueffer a young poet and novelist’: he changed his name after the 1914-1918 war) had married a ward. He told a journalist friend of it; and ‘allowed, I am sorry so say, an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings’. The contempt was not that the journalist’s paper had published the name or the fact of the bride being a ward, but that what was published would be understood as ‘what took place in my private room’ and what ‘the judge had decided’ (per North J).

 

Publication of ‘information in proceedings’

 

What may not be published? Lord Bridge quotes Geoffrey Lane LJ (at 105) in Re F, where he explained what was included as part of ‘information relating to proceedings’ in s 12(1):

 

‘Proceedings’ must include such matters as statements of evidence, reports, accounts of interviews and such like, which are prepared for use in court once the wardship proceedings have been properly set on foot. Thus in the instant case the reports of the Official Solicitor and the social worker were clearly part of the proceedings and were protected by section 12.

 

Publication of such documents (passing them to a journalist (as in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142) invites an application based on this breach of privacy contempt. In Re B (above) Munby J gave a summary of his view of the operation of AJA 1960 s 12(1) (at §[82]).

 

Others will decide whether any of the journalists responsible for disparaging comment should be brought back to court. In the private proceedings context, the extent to which documents can be released from (say) children proceedings, depends on the view of the court and on what can be proved against a contemnor.

RIGHT TO PUBLISH WARDSHIP CASES: HOW FAR?

Publicity: further scope for a criminal charge

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

(a)where the proceedings –

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

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

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

 

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

 

Relaxing the restraints on publicity

 

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

 

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

 

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

 

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

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

 

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

 

Court promoting publicity

 

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

 

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

FAMILY LAW’S SHAKEY HOLD ON THE COMMON LAW

 

Common law and the ‘open justice principle’

 

[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.

 

So said Toulson LJ (now Lord Toulson) in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618. Meanwhile FPR 2010 r 27.10(1) says that all family proceedings must be held in ‘private’; and in Bristol City Council v C & Ors [2012] EWHC 3748 (Fam), Baker J – an experienced Family Division judge and children lawyer – cites this rule as authority for the proposition as to the privacy of private proceedings:

 

(1) Save where the court directs otherwise, care proceedings under Part IV of the Children Act 1989 are held in private: Family Procedure Rules (“FPR”) 2010 rule 27.10(1). (2) FPR Rule 27.11, and Practice Directions 27B and 27C, give duly accredited representatives of newsgathering and broadcasting organisations the right to be present in private care proceedings unless excluded by the court on certain limited grounds set out in the rule.

 

So the common law says ‘open justice’ is the starting point (explained by such House of Lords authority as Scott, Attorney General v Leveller etc); whereas a family proceedings rule says the opposite. Which is right?

 

The starting point is the common law; and that the common law can only be overridden by express statutory authority. However, a problem with the common law, and with the fundamental rights defined by it, is that a straightforward definition of what it says is not always easy to find. Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law, as summarised by Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(1), confirms this Convention assertion: ‘The general rule is that a hearing is to be in public’. Neither of these create the law. They merely provide a summary of what the law already says (as Toulson LJ above confirms).

 

The common law is not likely to give an answer very different to that which the family courts have adopted thus far. It is merely that it will do so in a clearer and more principled way than does the present jungle of rules and practice directions which family judges seek to uphold at present.

 

Lady Hale and the common law

 

In UK Constitutionalism on the March? (12 July 2014 address to Constitutional and Administrative Law Bar Association Conference 2014) Lady Hale spoke of a recent emergence amongst judges of an ‘emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration’. The ‘continued and developing protection offered’ by the common law must not be overlooked, she said. It may not:

 

…offer a prescriptive list of rights but this does not mean that it is not a rich source of fundamental rights and values, nor that its development has been somehow arrested once the Convention was incorporated into domestic law.

 

She pointed out the success of rights challenges based on common law principles in recent years; and stressed in particular the Guardian News and Media case (above). She drew attention to three cases dealt with in the Supreme Court in 2014, cases which involved rights to a fair trial and open justice, and to freedom of speech. In these cases the court has taken the opportunity, she said:

 

… to underline the view that the natural starting point in any dispute should be domestic law – albeit not always unanimously. The Convention may then be used as a check to see if any further development of the common law may be required.

 

It is the rights referred to above, linked with the right to respect for family life, with which the family law debate on privacy and publicity starts.

 

The rights concerned in publicity and privacy of family proceedings – the ‘transparency’ debate are wholly imbued by fundamental common law principles: of open justice, press freedom and an emerging principle, that of privacy and a right to respect for family life (largely drawn, it must be said, from European Convention jurisprudence). So what is the law on altering a fundamental principle; and what is the effect of the effect of FPR 2010 r 27.10(1) (eg as referred to by Baker J (above)).

 

Fundamental rights: common law ‘the starting point’

 

Parliament can legislate in a way which is contrary to common law rights; but if it does so – and Lady Hale touches on this point in her speech – it must do so clearly and in express terms. Lord Hoffman explained this in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien [1999] UKHL 33; [2000] 2 AC 115 (in a case where the rights – upheld by the House of Lords – of prisoners to be interviewed by journalists who refused to sign undertakings which restricted their right to publish what they were told by the prisoners)

 

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

 

Lord Hoffman returned to this point in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 (a case concerning fundamental rights and legal professional privilege)

 

[8] … the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication … [ex p Simms (above)] contains some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) 1 Pl 199.

 

As Toulson LJ said in Guardian Newspapers v West London Magistrates: this area of open and private justice is governed by common law. It concerns fundamental rights: open justice and publicity, as against such rights of privacy as the common law may permit. Legislation on this area of family law is very limited. The most obvious statutory provision is Administration of Justice Act 1960 s 12 (though there are others of limited effect in eg Children Act 1989).

 

The fundamental position protected by the law is that all court hearings – civil (which includes family) as well as criminal – should heard in public. Any derogation from this must be justified. Family lawyers have tended to think that hearings should be in private with open justice being the exception. Thus has arisen their adoption of the term ‘transparency’. This is wrong. A fundamental right, protected by the common law, can only be derogated from – changed – by express primary legislation (R v Secretary of State for the Home Department, exp Simms per Lord Hoffman (above)).

 

Looking at it from the opposite direction – the ability of court rules (a form of delegated legislation) to alter substantive law – Buxton LJ explained the limitations of court rules (speaking of CPR 1998, but the same applies of any court rule) in Jaffray v The Society of Lloyds [2007] EWCA Civ 586:

 

[8] … The CPR 1998 [he was], being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628.

 

Common law open justice

 

So what is the position on open justice with civil proceedings? The common law rule is that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished, said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469:

 

… unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally.

 

As Toulson LJ mentioned at para [33], another aspect of the open justice principle was picked up by Lord Scarman – ‘a thinker ahead of his time’, and in a minority in Harman (on a point which has now been altered to the position advocated by Lord Scarman: see CPR 1998 r 31.22) at that stage – in Harman v Home Office [1983] 1 AC 280, 316. Of open justice he said (at 316):

 

… [The judge] is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.

 

The open justice principle is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’; and in CPR 1998 r 39.2(1) asserts that: ‘The general rule is that a hearing is to be in public’. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies.

 

Common law and Civil Procedure Rules 1998

 

Probably the easiest version of the common law to follow is as summarised in CPR 1998. Rules 31.22 and 39.2 set out the principles relevant to what is under discussion here. Rule 39.2 (it makes more sense to consider r 31.22 later) provides as follows:

 

General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

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

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

(b) it involves matters relating to national security;

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

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

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

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

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

 

Each of the sub-paras marked * would be relevant to family proceedings; and with these and any other accretions to the common law specific to family proceedings this rule would seem to be sufficient – as it is in all other civil proceedings – to dictate when a court should sit partly or entirely in chambers. That is to say, all hearings must be in open court, and any hearing in private must be justified one or more of the grounds set out in r 39.2(3) or in any other statutory provision (eg Administration of Justice Act 1960 s 12).

 

So what is the law today? There is no doubt. The common law rules. It dictates what the law is and what the family courts should follow. It can only be altered by express primary statutory provision. FPR 2010 r 27.10 is not such a provision; and there is nothing in any statute – eg Courts Act 2003 ss 75 and 76 (which gives Family Procedure Rules Committee its rule-making powers) – which enables the FPR 2010 rule-makers to take course which seeks to require most family proceedings to be heard in private. Rules 27.10 and 27.11 are ultra vires the rule-makers and should not be followed by the courts. The common law – as expressed by CPR 1998 r 39.2 above – serves perfectly well; and it is the common law which family court judges should follow.