LORD SCARMAN AND A DEFINITION OF DOMESTIC ABUSE

Domestic Violence and Matrimonial Proceedings Act 1976 as new law

 

In a judgment (speech in House of Lords) in Davis v Johnson (9 March 1978; ) [1978] UKHL 1, [1979] AC 264 at 348 Lord Scarman explained the remedies provided by Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976) s 1; and then, he defined domestic violence for the purposes of the Act:

 

… Conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction — actual, attempted or threatened — is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.

 

Lord Scarman was a pre-eminent family lawyer from a time when children law was hardly regarded as a separate discipline (think Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA;  A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948, (1981) 2 FLR 222; Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224; Re E (A Minor) (Wardship: Court’s Duty) [1984] FLR 457 for a flavour of his children law work).

 

Non-molestation orders: a new family law remedy

 

Before the quote above, Lord Scarman (who gave the fifth speech) had set out the text of s 1(1) of the Act (still no mention of domestic violence or domestic abuse – just of ‘molesting’ a party:

 

(1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely—

(a) a provision restraining the other party to the marriage from molesting the applicant;

(b) a provision restraining the other party from molesting a child living with the applicant;

(c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included;

(d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home, whether or not any other relief is sought in the proceedings

 

Lord Scarman explained s 1(1) as follows:

 

Subsection (1) enables a party to a marriage to make application to a county court. It is without prejudice to the jurisdiction of the High Court and it empowers a county court (any county court, whether or not invested with divorce jurisdiction) to grant an injunction “whether or not any other relief is sought.” Clearly the subsection provides a new remedy additional to, but not in substitution for, what already exists in the law.

 

Section 1(2) applied s 1(1) equally to a couple who were not married; and references to matrimonial home were to be construed accordingly.

 

Non-molestation in 1996; but still no domestic violence definition

 

And so, in 1975-6, a new family law remedy was born in the 1976 Act. It was intended to cover both the married and the unmarried, and their children: the free-standing (‘whether or not any other relief is sought’) non-molestation injunction. This is the remedy which – for today’s purposes – is reproduced in Family Law Act 1996 s 42(1):

 

42 Non-molestation orders

(1)In this Part a “non-molestation order” means an order containing either or both of the following provisions—

(a)provision prohibiting a person ( “the respondent”) from molesting another person who is associated with the respondent;

(b)provision prohibiting the respondent from molesting a relevant child.

 

The 1996 still avoided a definition of ‘domestic violence’: the rest of s 42 deals with procedural matters; whilst earlier sections of FLA 1996 had dealt with occupation orders.

 

The charming authors of Legal Aid Sentencing and Punishment of Offenders Act 2012 attempted a definition of ‘domestic violence’ which is tucked away at Sch 1 para 12(9):

 

‘domestic violence’ means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;…

 

Contact practice direction and domestic abuse

 

In Family Procedure Rules 2010 PD12J Child Arrangements & Contact Orders: Domestic Violence and Harm those who draft Family Procedure Rules 2010 and their accompanying practice directions have given us as a definition of domestic abuse – but only in relation to child contact. Para 4 (I set this out in full):

 

‘domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;…

 

In addition the terms ‘abandonment’, coercive behaviour’, controlling behaviour’ and ‘ill-treatment’ are further defined.

 

A practice direction as law

 

The first comment on this must be to recall that a rule, still less a practice direction, cannot change the law (Re Grosvenor Hotel, London (No 2) [1965] Ch 1210, CA approved by Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 at [27]). The law is what was explained by Lord Scarman in Davis v Johnson. And anyway what does the practice direction add to what was said by Lord Scarman 40 years ago?

 

One problem with any definition is that the more extensive you make it, the weaker it is: detail only suggests more ways in which a person can wriggle round it. That is the beauty of Lord Scarman’s definition; and as law it applies to a much wider set of statutory circumstances (FLA 1996 s 42; children proceedings generally (ie not only contact); and occupation orders).

 

The practice direction is a lesser form of law, and priority when advice is given or legal aid applied for, should be given to Lord Scarman (with a nod, perhaps, to LASPOA 2012 Sch 1).

Domestic violence children contact and a new PD12J

What does the law say?…

 

The heading of the Marilyn Stowe blog by Paul Apreda, the National Manager of the Welsh charity FNF (Families Need fathers), Both Parents Matter, Cymru entitled ‘Are the best interests of the child no longer paramount?’  is controversial, perhaps deliberately so. It refers to the draft practice direction (PD), which in its present form is entitled Family Procedure Rules 2010 Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (‘PD12J’).

 

In this note, in an attempt to provide clarity in any debate, I should like to look at the statutory principles in issue, namely Children Act 1989 s 1, described by Paul Apreda as the ‘corner stone’ – the paramountcy principle – of children law. Section 1 was extensively amended by Children and Families Act 2014 (CFA 2014). I want to look at the words – just the words – and what they may mean in their legal context. I will try to do that without PD or parental feelings overlay.

 

A number of amendments to the present version of PD12J are proposed in a report to the President of the Family Division, Sir James Munby, by Cobb J . The controversial (as between Cobb J and Paul Apreda) passage in PD12J is, as proposed by Cobb J (with the original shown here as deleted) is:

 

4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.n [I pick up the n below] The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

Cobb J’s report is published by Sir James Munby with his 16th View from the President’s Chambers ‘Children and vulnerable witnesses – where are we?’ . Sir James comments on the report, but seems to accept what is recommended for the redraft of para 4.

 

Law reform, Henry VIII and a practice direction

 

Paul Aspreda makes his position on this passage clear from his opening paragraph:

 

Stephen Cobb is a very senior Judge in the Family Court. He is a remarkable man. He recently proposed an effective end to the paramountcy principle – the overarching golden rule in family proceedings that the best interests of the child are paramount. But not content with demolishing the corner stone of the system, it looks as though he may believe the family courts can overrule the will of Parliament too.

 

In doing this he picks up an argument, also mentioned in my ‘Domestic violence & family proceedings: Practice direction amendments to protect vulnerable witnesses & children’ (). How appropriate is it to legislate by PD? As I explain later, it cannot lawfully be done. The point is developed by ‘Lucy R’ in ‘Imaginary judges use imaginary powers to reform imaginary law’ where she says (of ‘judges’ but she is speaking of a PD):

 

Judges can’t changes the law. Parliament changes the law. In this case, Parliament does it by approving a Statutory Instrument that amends the Family Procedure Rules. That Statutory Instrument comes from the Family Procedure Rules Committee, a committee created by Parliament, which the judges don’t control.

 

It is not even as simple as that. If a rule tries to change the law, it can only do so in the rare events that Parliament says it can. Otherwise it is known as that form statutory instrument frowned upon by constitutional lawyers, namely a Henry VIII clause (as explained by the Supreme Court recently in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 9: where the Legal Aid Agency (‘LAA’) tried to change a law which Parliament had already made). As matters now stand only Parliament can change the law in this area; or it can be done by rule-makers and approved by Parliament.

 

As to the lesser form, practice directions: a PD cannot change the law (as I hope to show). Paul Aspreda’s assertion as to the proposed PD change raises important questions:

 

  • What is the law in this area: Act of Parliament and PD?
  • What does the law say and mean?
  • How can it be changed, in particular can it be changed by practice direction?

 

Children Act 1989 s 1 and PD12J

 

The two sources of law which run through this discussion are the post-2014 CA 1989 s 1 and PD12J para 4. Cobb J has proposed the amendment to para 4 (amongst a number of others) in a report to Sir James Munby P. This note will set out the relevant bits of CA 1989. My review of the proposed PD amendment depends on a careful reading of the words in s 1. Considerable effort went into making the original Act as clear as possible for all readers. I am sorry to say, the 2014 amendments have made the waters of that relatively clear statutory drafting a little muddy; but that is what we must work with.

 

CA 1989 s 1 is designed to give first priority to the welfare of any child involved in any proceedings. So far as relevant to this article s 1 says:
1 Welfare of the child 

(1)  When a court determines any question with respect to –

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

(3) In [making an order], a court shall have regard in particular to –

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

(b)his physical, emotional and educational needs;..

(e)any harm which he has suffered or is at risk of suffering;

 

As can be seen sub-paras (2A) and (2B) have been added. This was by CFA 2014, which also added s 1(6) and (7). I do not think it oversimplifies the amendments to say that paras (4)(a) and (7) refer to applications for child arrangements orders and parental responsibility orders. I will come back to para (6)(a) after looking at the parts of the PD which concern Paul Aspreda, and which affect parents who have been separated from their children in the context of domestic violence proceedings.

 

Lawfulness of PD12J

 

A practice direction is made by the President of the Family Division only, with approval of the Lord Chancellor (ie Ms Truss: see Courts Act 2003 (CA 2003) s 81). It does not go through any democratic process like an Act of Parliament (voted on by MPs) or court rules (eg Family Procedure Rules 2010, mentioned above). Practice directions do no more than deal with ‘the practice and procedure’ of family courts proceedings (CA 2003 s 81 and Civil Procedure Act 1997 s 5). As can be seen, a PD is relatively far down the legislative chain of legal force and reproduction.

 

CA 2003 s 81(2) says that family law PDs are made by the President (as explained above) are intended to govern ‘the practice and procedure of [family] courts in family proceedings’. The meaning of a PD, in general civil proceedings terms, was further explained by the Court of Appeal in U (A Child) v Liverpool CC [2005] EWCA Civ 475, [2005] 1 WLR 2657 by Brooke LJ. After citing the cases which say more about what PDs are, he said:

 

[48] …. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

 

It follows from this, that a parent (perhaps most often a father) is entitled to ask – as does Paul Apreda – whether the revised para 4, if brought into effect, is dealing only with ‘practice’ (per s 81(2) and U v Liverpool; it is certainly not ‘procedure’). Or if, in reality, and in law, is the PD seeking to legislate? Does it attempt to set out ‘statements of law’, which the Court of Appeal says is ‘wrong’, that is, is it unlawful?

 

The aim of PD12J is set out at para 2: it is ‘to set out what the Family Court is should (sic) do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse’. It defines ‘general principles’, and then deals with specific procedural matters where domestic violence is suspected or has been proved. Para 4 (set out above) is the first of the ‘general principles’; and Cobb J says of this in a foot note:

 

Para.4: The statutory presumption in section 1(2A) CA 1989 applies “unless the contrary is shown”. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm;

 

Children Act 1989 s 1 amendments

 

The CFA 2014 reforms centre (as do Cobb J’s proposed changes) mostly on s 1(2A) and (6), which is as follows:

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

When the court is making a child arrangements order three factors arise; and these lead into and help to explain Cobb J’s proposed para 4:

 

  • There is a presumption that involvement of a parent in a child’s life ‘will further the child’s welfare’ (s 1(2A): seems surprising this needs to be set out in a statute; that point is not in issue here); and that parents can be involved in a child’s life without putting a child at risk (s 1(6)); unless
  • There is some reason – ‘unless the contrary is shown’ (s 1(2A)) – why the s 1(2A) presumption should not operate; or
  • ‘… there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm…’ (s 1(6)(b)).

 

In a sense s 1(6)(b) is a particular aspect of s 1(2A): if 1(6)(b) is proved, the contrary to a child’s involvement is likely to be shown. But an aspect of s 1(6)(b) is ‘the child at risk’. Cobb J’s para 4 goes much wider. It is repeated here (I have added the italics and boldened ‘other parent’):

 

4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.

 

‘…unless the contrary is shown…’

 

Adding ‘other parent’ to the proposed para 4 seeks to alter the law in a radical way. Children are the subject of protection in s 1, not any ‘other parent’. ‘Other parent’ was not included in the 2014 Act. Perhaps it should have been, but it was not. CFA 2014 received Royal Assent on 13 March 2014. If Parliament had wanted a particular interpretation to be placed on its words it would have said so, or it could have added those words to s 1(6). And if that is right, and if a PD is not the place to change the law, I would expect a challenge by a disgruntled parent – probably a father – before long; and that will only add to the unhappiness of another couple and their children.

 

Alternatively, a High Court judge, after hearing argument on the meaning of s 1(2A) and (6) in a particular case could tell us all what ‘… unless the contrary is shown…’ means in this context. With respect to the President of the Family Division – who when making a PD is an administrator not a judge – a PD is not lawfully the place to change the law; and this is so however well-meaning may be the intended Presidential reform. That is not what PDs are for.

 

Lucy R comments on the proposed para 4:

 

The problem is that this new version of paragraph 4 is that it isn’t what the actual statute says. And it is far from uncontroversial to say that the presumption put in place by parliament requires “contact at all costs”. The presumption is very carefully crafted so that where evidence is provided to show there is risk (which might be arising from domestic abuse or something else) that can’t be managed the presumption is disapplied…

 

There may be many cases where violence or other behaviour against the other parent – if proved – will mean that ‘the contrary is shown’. The presumption of involvement in a child’s life by a parent should be reduced appropriately (s 1(2A)). But this should be regulated by judicial decision in each case, not by the essentially undemocratic practice direction. And particularly it should not be done where something could have been said by Parliament in an act – Children and Families Act 2014 – which is not yet three years old.

 

Cobb J’s proposals have entirely understandable and laudable aims as fully explained by him in his report. They may not be lawful if introduced in a way which the law should not recognise. And if the PD seeks to change statute law – as it seems to do – it would go even further down the Henry VIII route even than did the LAA and Lord Chancellor did in changing legal aid eligibility. Changing the law is a long and winding, if well planned out, road; and most would say, so it should be if it is to be fair.

On-line divorce scheme: an update…

Users to be recruited for on-line divorce system

 

At the end of January a practice direction was added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title; but it was not clear how to gain access to the new scheme. This has been explained by HMCTS.

 

After publication of PD36D inquiries were made of Ministry of Justice and of Family Procedure Rules Committee. These inquiries elicited the response that HMCTS are in the first phase of the pilot. Potential users of the new scheme will be personally invited to use the system and given access following a screening process at the pilot site. Therefore, at this stage in the pilot, access to the pilot is controlled whilst HMCTS build confidence in the system for any wider use. The pilot is being run at the East Midlands Divorce Unit in Nottingham and HMCTS are currently recruiting users in the local area to participate in the pilot. How these ‘users’ are chosen, is not stated.

 

With this in mind, I have updated my note of 31 January 2017 (https://dbfamilylaw.wordpress.com/2017/01/31/on-line-divorce-scheme/). Subject to that I have retained most of the original text. The ‘system’ represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

Lawfulness of rule changes

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). That said, I am concerned that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4) (CA 2013)) which enables the rule-makers to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (CA 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274). However, there is nothing to say a practice direction (which is a lesser statutory species) can alter a rule.

 

PD36D says that where it ‘applies’ an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ (CA 2003 s 75(5)(b)). When it comes to amendment of rules I am anxious as to whether this PD is lawful (as explained above: the President using a practice direction to alter a rule, which originally is made by a statutory body). And is it ‘simple’ or ‘simply expressed’? This is a field where the scheme must be designed for use by private individuals who are proceeding without a lawyer (litigants in person). This one of a number of questions HMCTS will, no doubt, want to answer.

 

Further thoughts on the clarity of the scheme include:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the PD speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority). Let us hope HMCTS can be clear on terminology, and that – in the usual way – a statute takes priority over a rule.
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce: same points as above apply.

 

The new PD has had some publicity amongst family lawyers. It would have been helpful for the plans for it to have been made more public, and for PD36D to have had an explanatory note – something which goes out with all statutory instruments – so all of us knew what was intended by it. It would have been of value if that note had included:

 

  • That the new pilot system applies to all divorces from [a date] for [the individuals who are to be targeted by the scheme]
  • Whether or not it is compulsory for those chosen
  • Where information about the scheme can be found at [link to site]
  • Any information about the data collected, confidentiality etc.

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should please have been amended by another rule. It is sobering to think that someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, and the petitioner has remarried, that could be bigamy, and another petition – nullity this time – may be involved.

 

This, perhaps, puts a duty on the respondent’s adviser who is troubled by the legality of these rules. I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).

On-line divorce scheme

A new practice direction for on-line divorce

 

As the debate on the EU withdrawal bill rages in the House of Commons I reflect on the latest practice direction to be added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title with the important omission – as I read it – that it does not tell someone who wants a divorce how to access the system so you can operate it. (I may be missing some obvious step, so I apologise in advance to any reader if that is right.)

 

The PD implies that it comes into operation on 25 January 2017 (is this what para 1.2(e) may mean?), though this is not stated. It represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). No, what I am concerned about is that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

Lawfulness of rule changes

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4)) which enables the rule-makers – in this case Family Procedure Rules Committee – to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (Courts Act 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274).

 

There is nothing to say a practice direction (which is a lesser statutory species) can alter a rule. (In the 1990s the then Lord Chancellor’s Department provided by practice direction for a selected group of county courts to have an ‘ancillary relief pilot scheme’ to try out a new procedure; but when it was pointed out to them that this could not – or should not – be done by practice direction they introduced proper rules, alongside a paragraph in Civil Procedure Act 1997 to enable pilot schemes to be set up).

 

Now PD36D says that where it ‘applies’ – though it is not clear from PD36D when it does apply – an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used. The problem comes full circle: what ‘form generated’ etc?

 

There are a number of references to ‘the online system’; but the practice direction makes no attempt to define what that means or to tell the prospective petitioner (‘applicant’) how to get into it.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ because that is what Courts Act 2003 s 75(5)(b) says. I doubt whether this practice direction is lawful (as explained above: the President using a practice direction to alter a rule, which is made by a statutory body); but nor is it ‘simple’ or particularly ‘simply expressed’ in a field where it must be designed to be used by private individuals proceedings without a lawyer. Yes, I know this was drafted over the President’ name, not that of the Committee; but he should adopt the same ‘simply expressed’ criterion, surely.

 

Apart from not telling a reader where to find ‘the on-line system’, whether it is compulsory or from when it runs, the scheme suffers from a number of further unclear aspects, such as:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the practice direction speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority).
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce.
  • The practice direction says documents required are on the on-line system (para 5.3); but does not say where the system is.

 

It would have been so easy for the person who drafted PD36A to have said:

 

  • this system applies to all divorces from [a date]
  • it is compulsory for such divorces
  • the system can be found at [link to site]
  • the petition must be accompanied by [documents needed].

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should have been amended by another rule (which is not an onerous task). Someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, any financial orders will have to be untangled.

 

It puts a duty on the adviser who is troubled by the legality of these rules. And I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).

LAW, PRACTICE DIRECTIONS AND GUIDANCE

Practice Directions and the President of the Family Division

In her http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/ @familoo reflects on precedent law: ‘Who to follow: the precedent or the President?’. In it she asserts:

Whilst the President has the power to issue Guidance or Practice Directions, what status do his Views hold, styled in title if not in form as the idle musings of a be-windowed leader? The answer is of course they warn us what the Court of Appeal might say in the event we fail to take heed and find our foolish disobedience immortalised in a new actual (and excruciatingly embarrassing) binding precedent.

This breaks down into three areas of ‘law-making’ (the inverted commas will be explained): Practice Directions, Practice Guidance and the habit of Sir James Munby P of musing at his chambers window (which are indeed but his thoughts: no more, though from a voice significant in the family law system; and that is the last to be said on fenestral musings here).

Sir James, the current President of the Family Division, is a dogmatic figure; and sometimes fails to distinguish between his position as a judge, and as an administrator. In the latter role he must be amenable to judicial review. Rightly, he stresses that family law is part of the civil law system. It is not some segregated lawless Alsatia (see eg Richardson v Richardson [2011] EWCA Civ 79). At the same time he does much precisely to drive family proceedings into their own ghetto, Alsatia even. For example the new rules and statute law on expert evidence is technically the creation of statutory bodies; but bears his firm imprint. It creates three regimes for expert evidence: children proceedings (mostly in Children and Families Act 2014 s 13); all other family proceedings (FPR 2010 Part 25); and other civil proceedings (CPR 1998 Part 35). Over all of these arches Civil Evidence Act 1972 s 3.

Practice Direction, Practice Guidance and ‘gap’ rules

The question of practice guidance divides this area of delegated legislation into Practice Directions, Practice Guidance and ‘gap’ rules (together here called ‘practice rules’). The topic is considered fully in my Practice of Family Law: evidence and procedure (Jordans, 2012) at Chapter 2 (paras 2.12-2.36). Rules are made by Family Procedure Rules Committee under powers in Courts Act 2003 ss 75-76 (outside the scope of this note). Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice (family proceedings Practice Directions are endorsed as being approved by the LCJ).

Limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.

Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors v The Society of Lloyds [2007] EWCA Civ 586 at para [7]-[9]) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC [2005] EWCA Civ 475 at para [48] for practice directions:

It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

‘Gap’ rules

If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras [37]-[39]). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be. One of the more remarkable recent breaches of this principle – though largely unremarked at the time, and since – was that of Mostyn J in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In that case the judge gratuitously issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors [2010] EWCA Civ 908: private documents taken by one spouse unknown to the other).

The ‘guidance’ was no part of the ratio of Mostyn J’s decision. (It is generally known that Sir James approves this ‘guidance’.) It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the law Society or the Bar Council). The ‘guidance’ fills no Bovale gap necessary to enable the court to resolve a disputed issue. Short of judicial review – Mostyn J was not acting as a judge, in the sense that a judge adjudicates between opposing points of view, so must have been amenable to review – there is no way the decision can be challenged. The ‘guidance’ is foreign to all democratic principles on which the rule of law is based. Plainly Mostyn J’s ‘guidance’ is a charter for cheats (as explained in https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ); but until the professional negligence claims start coming in from spouses who were advised to part with crucial evidence of material non-disclosure, the Mostyn J ‘guidance’ on the subject will be followed by impressionable family lawyers.

Status of practice directions and guidance

As can be seen: practice directions and guidance are not law. They guide practice. They cannot – or should not – be given by judges on the hoof; and if, as ‘gap’ rules, they are to be made, courtesy (ignored by Mostyn J) suggests that the judge enables practitioners in a case to comment on the proposed ‘gap’ filling guidance. An excellent example of this practice by a judge can be seen operated by Keehan J in A Local Authority v DG & Ors [2014] EWHC 63 (Fam).