MUNBY: LISTEN TO THE INDIVIDUALS AFFECTED

What do the young people think?

It is time to take stock in the ‘transparency’ debate and to review a couple of eloquent comments in [2014] Family Law: a Comment from Peggy Ray (a child law solicitor) at 1655 and an article by Dr Julia Brophy, a ‘Principal Researcher in Family Justice’ (sic a title proposed by Family Law).

Peggy Ray sets the scene: ‘Would you be happy that the problems your family may be experiencing at any particular time are shared with your local paper, even without naming you?’ she asks rhetorically. She explains why – at the very least – there must be ‘extensive consultation with the most vulnerable citizens involved’ – namely the young people whose interests are central; followed by a full assessment of risks to them. And Julia Brophy then elaborates Peggy’s themes from her research.

Almost every line of these two documents should say to Sir James Munby P that his cosying up to the press must stop. Young people do not trust journalists (as most of us do not: me, I’m a jurist, not a journalist!). Many journos don’t let facts interfere with a good story; or their own opinion Brophy’s young people note (p 1689). Local communities (whether large and rural; or urban and numerous) have a way of undermining the most effective attempts at anonymity (p 1687). Family court judges (who do not probably spend much time on Twitter or Facebook) can have scant imagination of its power to communicate; and then a child already vulnerable, has the potential to become vulnerable to paedophile grooming. And so the family court – unwittingly – becomes a party in one way or another (read Brophy) to other forms of abuse.

And, of Sir James’s current wheeze ‘Family Transparency: the next steps’: http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ : the plan is to extend to family courts the common law rule about release of court documents to journalists (per R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343: the ‘open justice principle’). What does Munby imagine will that idea do to encourage young people to be frank with medical or other opinion witnesses (p 1691)?

Open court, a free press and protected individuals

Bentham was adamant that judges should sit in open court, so that they would be judged themselves. A free press was the means for that. In theory, Dr Bentham, yes. (As I write, a demonstration related to Charlie Hebdo, heavily attended by cynical politicians, takes place not two miles from where I sit. It is in support of freedom of a press these politicians would muzzle, or have their spies hack into). Meanwhile that free press shows itself at its most debased from the pen – a ‘pen mightier than the sword’, we must observe on Charlie Hebdo demo day, today – of an experienced (though fact averse, it seems) Christopher Booker (per Pink Tape: http://www.pinktape.co.uk/cases/i-am-calm/ ).

I return to the families in issue here. They are concerned not with high ideals of press freedom and open justice. They are concerned – as we should be – with the privacy of separate (and often ‘vulnerable’) individuals.

President: stop and think of the protected individuals concerned

Each case where the welfare of a child is in question, involves an individual family. Each individual child, his/her privacy and future privacy (European Convention 1950 Art 8, if you like) should be in issue in each separate case. I prefer to call them ‘protected individuals’ (‘vulnerable’ though many may be, also): ie deserving of protection. Each person and their case demands that different questions be answered; and that they and their welfare be protected.

One of those questions is: WHY? Why should my family issues and the possibility of my name and detail of my life be out there? What is the justification for that: whether in law and legal dogma, or in my personal case?

Sir James Munby P must bear in mind each protected individual affected by his posturing to the press. He must think very carefully about what the families individually, and the ‘vulnerable’ individuals themselves, are saying, before he goes any further. And he must remember what young people say about the real transparency of families, for anyone who reads about their family on Bailii or in Family Law Reports; and he should recall what the likes of Booker and the Daily Telegraph do with family court ‘facts’.

Finally, as a lawyer I ask Sir James, in any ‘family law reform’ you do propose, to keep to the law, not to putting out arbitrary and unlawful guidances and directions; but that plea is for another day….

CONSULTATION ON CHILDREN AND VULNERABLE WITNESSES: COURT PROCEEDINGS

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

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

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

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

RESPONSE TO CONSULTATION ON

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

SUBJECTS OF THE PAPER: ‘PROTECTED INDIVIDUALS’

A consultation paper

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

‘Proposals and initial recommendations’

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

‘Protected individuals’: in civil proceedings

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

Human rights: rights in all civil courts

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

Rules or primary legislation

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

CONTENT OF THE INFORMATION FROM PROTECTED INDIVIDUALS

Information from protected individuals

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

Forms of information

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

PROTECTED INDIVIDUALS

Protection for whom?

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

CONTEXT IN WHICH THEIR INFORMATION IS USED

Protected parties: in what context

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

Cross-over with criminal proceedings

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

Protected individuals as witnesses

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

HOW IS PROTECTION TO BE ACHIEVED?

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

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

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

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

Relaxing of hearsay rules

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

Inquisitorial process for protected individuals

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

CHILDREN WHO WANT TO PROVIDE INFORMATION

Talking to the judge

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

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

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

CHILD WELFARE INFORMANTS

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

CONFIDENTIALITY OF INFORMATION OF PROTECTED INDIVIDUALS

Confidentiality and human rights

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

LEGAL AID AND THE PROTECTED INDIVIDUAL

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

LITIGANTS IN PERSON

Litigants in person dealing with protected individuals

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

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

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

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

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

Role of the court in cross-examination

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

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

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

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

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

EUROPEAN CONVENTION 1950 – A HUMAN RIGHTS ACT 1998 BALANCE

Effects of European Convention 1950 on reforms

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

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

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

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

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

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

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

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

[8] And lay justices?

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

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

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

[12] Human Rights Act 1998 s 6

[13] FPR 2010 Part 16

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

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

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

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

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

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

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

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

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

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

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

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

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

CHILD ABUSE: INQUIRY AND REFORM

 Listening to children and other protected individuals: a family court response

 

In parallel with all the press and political furore over setting up a child sex abuse inquiry and the Rotherham cover-up, the Judicial and Tribunals Office have issued a consultation paper from the Children and Vulnerable Witness Working Group entitled an Interim Report and dated 31 July 2014 (http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/). The group seems to be part of the personal fiefdom of Sir James Munby P and was set up by him following one of his musings (12th View from the President’s Chambers) of 4 June 2014.

 

The working group (‘WG’) has met once, and seeks responses to its ‘proposals and initial recommendations’ by 3 October 2014. It proposes a rule change – yes, one procedural rule. Yet this is a much larger subject than one rule will resolve; and part of a massive political, legal and sociological subject demanding co-ordinated thinking between criminal, civil and administrative tribunals alongside family proceedings. It is only the civil and family courts aspect of it which the WG is considering. Ultimately the whole topic needs co-ordination with other departments dealing with protected individuals; and with any child abuse inquiry which may be set up. It may be an incremental process; but it needs some clarity of intent, to be based on some form of policy or philosophy.

 

Proposals and initial recommendations

 

The working group has put forward a number of ‘proposals and initial recommendations’. In summary these are:

 

  • There should be a new ‘mandatory [when are rules voluntary?] rule’ for ‘children and vulnerable witnesses and parties’ with practice direction and guidance to be ‘inserted’ in FPR 2010 as soon as possible (13(ii) and (iv)). This is to be drafted by the WG with the Family Justice Council (‘FJC’) (13(xvi)) (not with Family Procedure Rules Committee, which was appointed by Parliament to do this job).
  • Paras 13(vii)-(x) require advocates and litigants in person to identify ‘vulnerable’ parties etc
  • A practice direction for FJC guidance (it is not clear what constitutional role the WG envisages for FJC) to judges is recommended (13(xi); and the status of judicial discussions which children should be clarified (13(xii)) says the group.
  • Special measure should be made for vulnerable witnesses; and ‘the rule’ should contain details as set out in paras 13(xiii) and (xiv).
  • There should be training for judges and advocates (13(xvii)-(xix)) and ‘as part of the (sic) tool-kit’ (what ‘tool-kit’; and whatever that term is intended to mean in context).

 

This is the limit of what is proposed by the group. I now suggest a number of other headings which should be addressed by the WG, and only – in this context – to vulnerable individuals involved in civil and family proceedings. The wider issues thrown up by modern concerns about the treatment of abused individuals in a variety of contexts – listening to children and others concerned (at whatever stage in their lives), their treatment by public authorities (children’s departments, police, schools and courts), involvement of victims in court prosecutions, child welfare informants etc – needs further, detailed – and urgent – consideration.

 

Given a canvas limited to court proceedings – and mostly to civil and family proceedings at that – to what should immediate reforms be addressed? At this stage notes only follow. It is a subject which needs urgently to be developed alongside all the other issues which public authority neglect and political inertia are throwing up in relation to abused children and their treatment by public authorities.

 

Protected individuals in civil proceedings

 

First the title is too restricted. The group of individuals covered by the reforms is much wider. Parties, witnesses and all others involved in civil proceedings who might fairly be regarded as vulnerable – I would propose ‘in need of’, or ‘deserving,’ ‘protected status’ – should be the main part of the reforms. I have therefore proposed the slightly clunky working title of ‘protected individuals’: it gets away from ‘witness’ and ‘party’ which implies only court process. It is important to be clear that the information which is provided by a protected individual may not necessarily be for use in court proceedings.

 

The reforms must consider the special position of individuals (who may later become witnesses) who require protection in other circumstances: for example, because of their relationship with one of the parties (eg parent or child in cases of abuse by a party), because of their capacity (Mental Capacity Act 2005) or because they are child welfare informers (as with the case of X in Re A (A Child) [2012] UKSC 60 and later Re J (A Child) [2014] EWCA Civ 875).

 

Information from protected individuals

 

To what information – to use a neutral term – is this consultation addressed? What forms of information are involved; from whom that information will come; how may that information be employed; and by whom and how in court proceedings? Information which is collected from protected individuals, or where they give evidence in court and are entitled to protection, will include:

 

  • Information which vulnerable individuals (including children) may wish to give to children’s department social workers, schools, police etc), quite separate from court proceedings (at this stage)
  • Information and views which children who are the subject to proceedings may want to provide to the court: eg talking to the judge
  • Evidence which children as parties wish to give to the court
  • Protection for ‘vulnerable’ parties (eg parents and children who allege abuse by a party, where that party may have a right to cross-examine them)

 

Protection for whom?

 

Court proceedings which might involve a protected individual in any conceivable role – party, witness, subject (and talking to the judge) – include:

 

  • Children who take their own CA 1989 Part 2 proceedings and in their own right (with permission from the court as appropriate)
  • Children proceedings where the child is the subject of the case (ie the case is about the child and his/her family): either because parents are seeking an order in respect of the child (Children Act 1989 Part 2 (‘child arrangements’) or Part 4 and 5 (care etc)
  • Women (it will almost invariably be women) who have been abused (or allegedly abused) by a partner or other individual involved in the proceedings
  • Children who are accommodated by a local authority (CA 1989 Part 3) and may be involved in eg judicial review proceedings in relation to their care
  • Children who may be called as a witness in proceedings
  • A child or adult in any civil (including family) proceedings lacks capacity (Mental Capacity Act 2005)
  • A protected individual (as with X in Re J (A Child) [2014] EWCA Civ 875) is required to give evidence in any of the above proceedings and to be cross-examined or to give evidence in front of an alleged abuser

 

Protected individuals: context of their information and evidence

 

Extensive procedural changes are needed, and more understanding of the variety of facets which the question of protected parties’ evidence presents. This needs at least a review and a clear definition of the primary law and the court proceedings to which procedural changes might apply. The involvement of protected parties will span their first involvement either with a public authority; or with the courts where, as the subject of private proceedings, they may wish to – or be asked to – give their views as children of age and understanding.

 

As much flexibility as possible needs to be built into the system, so that where there is evidence it must be available to the court – even though not, in purist terms by a means which accords with every rule of procedural fairness (eg hearsay rules may need to be overridden, opportunities for cross examination reduced or constructed so that the court deals with appropriate questions from a party). A purist approach to the requirements of a fair trial may need to be sacrificed to child welfare.

 

This will need much more than a single ‘rule’. The role of obtaining child information for a court process needs well developed rules; the position of a judge talking to a child who wants to talk to the court needs a clear structure; and the special status of child welfare informers cries out for proper definition. Some of this may need primary legislation (the Children and Families Act 2014 was such a damp squib for family court reformers).

 

Child protection inquiry and reform

 

And this – the position of protected individuals and their evidence – is only a small part the law reform called for in this area. What happened in Rotherham, and in other parts of society, in the abuse of children and young women; what is happening with state interference with parental ties (ie is adoption really still necessary?); how children and other witnesses should be heard in the criminal courts; and how should children be heard and listened to by the courts: all this needs to be linked, but not delayed, in a process of child protection inquiry and reform.

MUDDLED LAW AND THE SET ASIDE JURISDICTION

Setting aside a consent order

MAP v RAP [2013] EWHC 4784 (Fam), Mostyn J (3 December 2013) http://www.bailii.org/ew/cases/EWHC/Fam/2013/4784.html shows how muddled the law can become – as between substantive law, procedure and practice guidance – if judges do not remind themselves where law shades into subsidiary legislation, and subsidiary legislation into guidance and judicial obiter dicta.

In this case the application was to set aside a matrimonial financial consent order. The law is provided for by Senior Courts Act 1981 s 17(1) (see below) as explained by Gohil v Gohil (below; decided since December 2013). FPR 2010 r 4.1(6) has nothing to do with the process; nor does any other subsidiary legislation immediately apply. As will be seen application to set aside is by appeal out of time (s 17(1)); or perhaps, as suggested by the Court of Appeal in Gohil, it may be that a separate application (perhaps under FPR 2010 Part 19) can be issued by the party seeking to set aside.

The background to the case was that, after a marriage of nearly thirty years, a wife claimed that she had consented to a financial order at a time when she lacked capacity to do so. She applied for permission to appeal to set aside the order. Mostyn J found that her appeal as to capacity was arguable and gave permission accordingly. If that appeal succeeded then the order would be set aside. Two areas were of concern to the court: the set aside procedure and capacity in the context of the case. Both points have since been considered by the Court of Appeal and Supreme Court respectively since December 2013.

However the judge made comments on aspects of the law which may be regarded as misleading, and therefore justify review here. He seems to treat Supreme Court authority as the opposite of what it said; and overlooked Court of Appeal (as explained below in relation to Re L-B and Roult).

Law, procedure and guidance

Mostyn J makes no reference to statute law; yet SCA 1981 s 17 provides for ‘applications for a new trial’ (and see commentary in Family Court Practice (the Red Book)) as follows:

17 Applications for new trial.

(1)Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2)As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.

This section governs set aside applications, as Ward J painstakingly explained in B-T v B-T [1990] 2 FLR 1, save where – as was the case in 1990 – Matrimonial Causes Rules 1977 made provision for county court appeals. In procedural law terminology a ‘new trial’ is to what the set aside issue is addressed: an applicant wants his/her order set aside so that a fresh trial of the issue originally resolved by the order (whether a consent order, as here; or following a contested hearing) can be arranged. And one of the disposals of an appellate court is to ‘set aside… any order’ or to ‘order a new trial or hearing’ (CPR 1998 r 52.10(2)(a) and (c)). Application to set aside and the related forms of appeal permission applications are explained in Family Court Practice (the Red Book) Part 1 at Procedural Guide E6.

Power to revoke a case management order

FPR 2010 r 4.1(6) under the heading ‘Court’s case management powers’ provides: ‘(6) A power of the court under [FPR 2010] to make an order includes a power to vary or revoke the order’.

The question of whether any jurisdiction under CPR 1998 r 3.1(7) (from which r 4.1(6) is directly derived) disposed of by the Court of Appeal in Roult v North West Strategic Health Authority [2009] EWCA Civ 444. At para [15] Hughes LJ reviewed the meaning of CPR 1998 r 3.1(7) and whether or not it could be treated as giving the court power to set aside its own order:

[15] … If [r 3.1(7) could be used to set aside a court’s own order], it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments…. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part.

Especially said Hughes LJ was this so in the case of a settlement reached with the benefit of full and skilled advice. ‘The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

Lady Hale confirmed this view in the Supreme Court in Re L-B (Reversal of Judgement) [2013] UKSC 8, [2013] 2 FLR 859 as follows:

 

[37]   Both [CPR 1998 and FPR 2010] make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and r 4.1(6) of the FPR. This may be done either on application or of the court’s own motion: CPR r 3.3(1), r 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which required the courts to led to the decisions in In re St Nazaire Company (1879) 12 ChD 88, [where the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judge’s orders]. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.

Notwithstanding that Lady Hale (though not in terms) follows Roult Mostyn J seems to derive a conclusion – ‘a challenge to findings of fact’ – which bears little relation to what she says (though he does not actually cite the passage in Re L-B to which he refers):

[17] …..Moreover, in the decision of the Supreme Court of Re L-B (A Child) [2013] UKSC 8, FPR 2010 r 4.1(6) was confirmed by Lady Hale as being the procedure by which a challenge to findings of fact would be made. And so it seems to me on that extended definition of the rule this application could quite properly be fought at first instance rather than by way of appeal.

He then goes on to cite a practice direction as ‘standing in the way’ of his perception of a Supreme Court finding (though still without reference to Roult (above) of which he was aware since it is referred to by Gloster LJ in ‘Cart v Cart’ to which he makes reference in para [18] below):

[17] … The only obstacle standing in the way of that are the terms of Practice Direction 30A para.14.1 which states:

“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged”.

And it is for this reason that the wife seeks to challenge this order which is described as being by consent by means of an appeal.

The reference to para 14.1 cannot stand in the way of the law; though in fact the final sentence of the paragraph (without citing it) accords with s 17(1).

Mostyn J then holds – to this extent he proceeds according to SCA 1981 s 17(1); though he cites the practice direction as authority for his finding – that an appeal was the correct route for Mrs MAP to follow:

[18] I am of the view that the appeal route is mandatory in respect of a consent order made by a district judge where there is no real challenge to the validity of the consent order per se. So, for example, if a challenge is being made under the famous case of Barder v Barder, then it seems to me that the Practice Direction fully applies and the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal called Cart v Cart.

Appeal or a separate application

Since MAP v RAP the Court of Appeal have considered the set aside procedure in Gohil v Gohil [2014] EWCA Civ 274 (at paras [43]-[50] and [57]-[60]); but then concluded that in Gohil itself the jurisdictional issue did not directly arise since they refused Mrs Gohil’s appeal. Obiter the court suggested that an applicant may only either (1) seek to set aside on appeal (s 17(1) above; B-T v B-T [1990] 2 FLR 1); or (2) apply by fresh action (de Lasala v de Lasala [1980] AC 546; Robinson v Robinson (Disclosure) (1983) 4 FLR 102 perhaps under FPR 2010 Part 19).

In any case, said McFarlane LJ, there must be a staged process (at para [55]) in relation to non-disclosure applications:

  • ‘Gateway evaluation’: a judicial consideration of whether there is evidence to justify hearing a set aside application. The Ladd v Marshall [1954] 1 WLR 1489 guidelines (was there credible evidence which could not have been before the court below etc) would provide ‘sensible structure to evaluate any fresh material’.
  • The Livesey test: this involves assessment by the court, in the light of such admissible evidence as there is and by the ‘standard and the burden of proof applicable to a finding of fraud’ (1) whether there had been non-disclosure and, if so, whether (2) ‘it had been material to the proceedings that had been previously determined’ (see eg Sharland v Sharland [2014] EWCA Civ 95).

Capacity

In MAP v RAP the issue on which set aside would be decided was Mrs MAP’s capacity. For that she has permission to appeal – that is, in effect, permission to seek to set aside the order. The subject of capacity and its basis for setting aside an order must await another day.

The statutory position is clear: an application proceeds by appeal under SCA 1981 s 17(1) (and see Roult: a set aside application cannot go back to the judge who made the original decision). It may be that application can be made by fresh application.

Post-script: at para [18] Mostyn J refers to ‘Cart v Cart’ as follows:

[18] … the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal – called Cart v Cart [2013] EWCA Civ 1006.

That was a case in which I represented the husband appellant; and as Mostyn J correctly says, Gloster LJ refused permission to appeal so the case is authority for nothing. It is true to say that Gloster LJ referred to FPR 2010 r 4.1(6) in the following terms:

[37] It cannot be said that, in relation to his ground relying upon an alleged Barder event, Mr Cart was not appealing at all, but rather asking the county court to set aside its own order pursuant to FPR 2010 r 4.1(6); and that, accordingly, all that Mr Cart was doing was seeking permission to appeal the refusal to do so by the county court. Not only does Barder itself make it clear that the correct characterisation of the process is an appeal; but also this court has made it clear in Roult v North West Strategic Health Authority [(above)] that, in circumstances where it is alleged that a subsequent unforeseen event has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR 3.1(7) (the CPR rule providing that a judgment or order may be set aside).

Lest it be thought that Mr Cart may have suggested that r 4.1(6) applied, I can assure anyone who is remotely interested in this relatively narrow subject: I would not have suggested it to Gloster LJ (she raised it herself). I have studied the point exhaustively over the past three years and I am well aware of what the Court of Appeal had said in Roult.

FAMILY COURT CONSULTATION: FIG-LEAVES AND FREUDIAN SLIPS

Consultation: the deluge and some dates

A few days ago I mentioned that there may be as many as five concurrent consultation exercises being undertaken in respect of the family courts (http://wp.me/p4jaDx-5Y ) , each – to a greater or lesser extent – at the behest of Sir James Munby President of the Family Division. It is not clear how he intends that any individual who is interested in the family courts should respond in time, especially if s/he would like to respond to the three awaiting responses.

Can such a hectic, and therefore superficial, consultation be in all reality a consultation; or is the consultation just a fig-leaf for what is, in reality, an administrative fait accompli? Anyone who is seriously concerned with family law reform is entitled to ask: is this consultation real, is it fair, and is it designed to achieve a democratic result?

Support for the fig-leaf theory includes:

• Response time is very short (mostly over August, when High Court judges and much of the bar who practice there are away). Two consultations end at the beginning of October, the other at the end of October.

• That when the Courts and Tribunals Judiciary office issued what Sir James – an autocratic law reformer, above all else – issued his ‘consultation’ entitled Consultation: Family Transparency – the next steps (19 August 2014) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ they (the judiciary office) described the paper as ‘proposals’. Proposals from a decision-maker are the antithesis of consultation. Is it a Freudian slip by the Judiciary office; or perhaps it hides the fact that Sir James’s ‘consultation’ is but a fig-leaf. It is not an auspicious start for a ‘consultation’.

Given the size of the Family Division and family court relative to other courts it does seem remarkable that there is so much – and such seemingly urgent – activity. Of the five outstanding consultation exercises in the Judiciary office, two relate to legal aid and the remainder to family courts. Why the rush, Sir James?

Of the five ‘consultations’ I referred to in http://wp.me/p4jaDx-5Y three must be completed in October 2014. The President – perhaps another Freudian slip – does not thinks to tell consultees by when his consultation ends (normally almost a sine qua non for a consultation):

• For such draft standard orders as have been recently issued (mostly child abduction and other High Court orders) – http://www.judiciary.gov.uk/publications/high-court-family-orders/ the consultation response date is 3 October 2014 (a Friday, so no last minute work on answers over the week-end).

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ if you ask Sir James’s office you may be told that there is no formal closing date on but that replies are requested ‘ideally by the end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ response is requested, again by 3 October 2014

Of the remaining areas of consultation: no dates seem to be fixed for further consultation or reply:

• Report of the Financial Remedies Working Group – 31 July 2014 http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF

• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

Consultation is part of the administrative law concept of fairness, and is something which all administrators must follow. And in all this, it is important to recall that Sir James is not acting as a judge, but as a civil servant, a state apparatchik (and a powerful one). It is part of the democratisation of modern government and attracts special Cabinet Office guidance (see eg https://www.gov.uk/government/publications/consultation-principles-guidance). There follows, in a separate blog, a very short note on the law on consultation, administrative law and the need for fairness – and perhaps Presidential aloofness – in the consultative process.

CONSULTATIONS IN PROGRESS PER PRESIDENT’S 13TH FENESTRAL MUSING

Family procedure: consultation under way

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

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

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

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

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

Protected witnesses: breadth of reform

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

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

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

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