HUMAN RIGHTS ACT AND FAMILY LAW: REFORM, REPEAL OR REPLACE

Convention law: a safety net

Human Rights Act 1998 and its incorporation of most of European Convention 1950 into English law has become a fundamental aspect of the English and Scottish constitutional framework; and it was often taken into account by judges long before its formal incorporation into British law in October 2000 (see eg Bingham LJ in W v Egdell (below)). However it must be recalled that it is mostly as a safety net that the 1998 Act and the Convention operate. That is part of its fundamental importance. The principle on which an effective welfare benefits system operates – as the post-War Beveridgeian system was intended to operate – is, as much as anything, as a safety net for those not provided for otherwise financially. So it is with the English statute and common law: that where these falter the Convention may plug the gap.

Toulson LJ (now Lord Toulson) explained the other side of this coin in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

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

Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.

Speaking – as I do – as a family lawyer (I dare not call myself a ‘constitutional lawyer’ as this series demands) I believe the Human Rights Act 1998 has done three things, all of which may survive within the common law and judicial thinking for many decades; though the points made here may apply in many – or most – areas of law:

  • It has sharpened up our understanding of legal concepts we had always used, but which the Convention made us rethink
  • It has made judges and lawyers balance the principles applicable and summarised in the Articles; known in Convention terms as ‘proportionality’
  • It has made us all, perhaps family lawyers especially, re-think aspects of the laws of confidentiality and privacy

Understanding legal concepts

Most English lawyers, including family lawyers, would have assumed that anyone who came before an English court in the twentieth century received a fair trial; and most family lawyers in the 1990s would have accounted the husband in Mubarak v Mubarak [2001] 1 FLR 698 as one of the more extreme rogues to have been dealt with in the family courts. As luck would have it (together with Mr Mubarak’s ability to fund an appeal, one might say) it fell to his case for the Court of Appeal to review the fairness of the rules made under Debtors Act 1869 s 5 (still in operation in the civil courts) for committal to prison for a debt ordered to be paid by a civil court. In 2000 (when Mubarak was heard) Civil Procedure Rules 1998 had recently been amended to apply, in civil (but not family) proceedings, the rule that a defendant should not be required to provide evidence against himself. The then family proceedings rules had not been so amended. As the 1998 Act was coming into force and Art 6(3) of the Convention coming to be applied to English court proceedings, the state of English family proceedings rules lead Brooke LJ to comment as follows:

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.

Proportionality: ‘ultimate balancing’

Many judicial decisions – regardless of operation of European Convention 1950 principles – involve, and have always involved, the judicial balancing of conflicting principles. Convention principles do not change that. It has, however, helped to bring the exercise into sharper focus.

Lord Steyn explained the operation of the Convention balancing test in a criminal and family case (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 at [17]): should the right of the press to publicise information about mother’s trial override the right of her child to privacy:

[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.

These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166

and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338. In Lifely v Lifely [2008] EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:

[35] The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.” For Article 10 in that case, read Article 6 in this [Lifely] case.

[36] In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the “ultimate balancing test” [as above]:…

[37] In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew’s property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,… was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.

Confidentiality and privacy

Ten years before Human Rights Act 1998 (in November 1989) Bingham LJ concluded his judgment in W v Egdell [1990] Ch 359, [1990] 2 WLR 471 (an important case in the context of when confidentiality and advice privilege may be breached) by stressing the significance of European Convention 1950:

No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.

This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).

That said, rules in relation to privilege have been known to and developed by the common law at least since the sixteenth century (as explained in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513). This will not go if Human Rights Act 1998 is repealed.

Conclusion: the lessons of European Convention 1950

Privacy and the law of confidentiality is an important aspect of family law and needs to be tended carefully. This and so much else would be much better developed within the common law but under the oversight of European Convention 1950 principles. The family law will always want to recall the lessons of Mubarak and the balancing test in Re S. These lessons will remain; but how many other lessons, as yet unlearned, will be lost if the prominence of the Convention is lost to English and Scottish law? How many of Brooke LJ ‘dusty corners’ will remain unswept if an overarching jurisprudence, such as that provided by the Convention  is not regularly applied? To close the legal mind or any body of law to any legal development is a retrograde step. Like John Donne’s continent: any that is washed away ‘diminishes’ the whole.

NO COURT FUNDING OF ADVOCATE TO HELP THE JUDGE

Public funding of advocate to the court: not permitted in children proceedings:

In Re K & H (Children) [2015] EWCA Civ 543 (http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html) the Court of Appeal comprehensively allowed the Lord Chancellor’s appeal from Judge Bellamy’s attempt to provide limited funding to assist the court in cross-examination of a 17 year old alleged victim (Yvonne) of an applicant father’s alleged abuse. Thus in March 2015 it was possible to say that the score in the then legal aid cases in the High Court and Court of Appeal was 4-1 against the Lord Chancellor (https://dbfamilylaw.wordpress.com/2015/03/20/legal-aid-applicants-4-lord-chancellor-1/ ). With the reversal of Re K & H that score is now 3-2: a less optimistic margin for the laid applicants.

Meanwhile, in a no-score contest the Court of Appeal explained the absurdly arcane means by which legal aid may be applied for to deal with representation for committal applications in civil (including family proceedings) (Brown v London Borough of Haringey [2015] EWCA Civ 483: see separate blog).

It must be said that family law, when it comes to consideration of witnesses such as Yvonne, is in a primitive state compared with criminal law and procedure (as touched on below; and see discussion of ‘vulnerable witness’ procedural reform: https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ). Further, it remains the case that the Court of Appeal did not consider Re K & H in the light of any limited help which the Attorney-General may be able to offer; and that they could do no more – perhaps inevitably – than to urge ‘statutory provision’ for appointment of an advocate to avoid perceived breach of the European Convention 1950 in rare cases where this was demanded.

Victim, child or other vulnerable witnesses: cross-examination in family proceedings

In Re K & H a strong Court of Appeal (Lord Dyson MR, who gave the only judgment, with Black and McFarlane LJJ, who agreed with him) reversed a decision on the funding of an advocate for the court to cross-examine a child witness and alleged victim of sex abuse (‘Yvonne’) by the father in children proceedings. The family courts background to this was that in Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31 Sir James Munby P asserted the possibility that a judge might insist that HM Courts and Tribunal Service (HMCTS) could be required by the court to pay for assistance to the court where a perpetrator (alleged or already found guilty) was to cross-examine an [alleged] victim. An April 2014 amendment to Matrimonial and Family Proceedings Act 1984 (MFPA 1984), as part of the setting up of the Family Court, had provided, at s 31G(6):

(6) Where in any proceedings in the family court it appears to the court that any [unrepresented] party is unable to … cross-examine a witness effectively, the court is to-…

(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.

In Q v Q Sir James held that the words ‘cause to be put’ means questioning other than by the judge and explained his reasoning as follows:

[76] …. [what], in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J [said in Re H v L and R (see below)].

[77] The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are… great difficulties in expecting the guardian or the guardian’s advocate to undertake this role….

So, said Sir James, what can the court do if the cross-examining party is not legally represented (eg because they are financially ineligible (and cannot afford representation) or do not want representation)? In the criminal courts cross-examination of vulnerable witnesses may be limited (Youth Justice and Criminal Evidence Act 1999 s 22; and see Criminal Procedure Rules 2014 rr 29.8-29.13, especially r 29.9; considered in Safety measures: vulnerable witnesses, Simon Heaney in Family Law Journal at 7). The family court does not provide such protection for children or other such vulnerable parties or witnesses. Sir James therefore concluded:

[79] …. if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

This conclusion was rejected by the Court of Appeal in Re K & H (at [45]) as explained below.

Facts underlying the appeal

The facts of Re K & H are that in children proceedings there were three children of Jane (none of the following names are theirs):  Yvonne (now aged 17), Kerry (now aged 6) and Holly (now aged 4). Kerry and Holly are full siblings, whilst Yvonne is the mother’s child by an earlier relationship. In July 2013, she said that when she was 15 she was sexually abused by the father of Kerry and Holly (Michael). Michael has always denied the allegation. The proceedings before Judge Bellamy concerned what contact arrangements or orders should be made between Kerry and Holly and their father.

The Court of Appeal explained the judge’s findings as follows:

[2] HH Judge Bellamy decided (rightly) that, before the court could consider the father’s future contact with K and H, it was important to establish whether Y’s allegation was true. A fact finding hearing was listed to begin on 14 January 2015 at which he directed that Y should give oral evidence. The mother was legally aided. Although he had been legally represented from time to time, by the time of the decision with which this appeal is concerned, the father was a litigant in person. He did not apply for legal aid: he appeared not to be eligible for legal aid as he appeared not to satisfy the “means test” set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.

The judge therefore held as follows:

  • it was not appropriate for the father to cross-examine Yvonne (in fact he did not wish to do so);
  • it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father;
  • the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and
  • the costs of the legal representative should be borne by Her Majesty’s Court and Tribunal Service (“HMCTS”).

In his conclusions Judge Bellamy had relied on some of the comments of Sir James Munby P in Q v Q (see refs in [16] of Re K & H on appeal; and as explained at eg [23]). The Court of Appeal centred its criticism of Judge Bellamy’s findings ([22]-[45]) and on a review of what Sir James Munby P said in Q v Q (there was no decision in Q v Q). The Master of the Rolls specifically rejected (at [45]) what Sir James said in Q v Q at [79] above.

The court therefore allowed the appeal on the Lord Chancellor’s first ground of appeal ([63]), namely (see [21]): ‘(1) The court has no power to require the Lord Chancellor (via HMCTS or otherwise) to provide funding for legal representation outside the LASPO scheme’; and further that European Convention 1950 Art 6(1) and a right to a fair trial does not generally permit judges any form of exception in terms of funding.

Circumvention of a statutory code

The statutory basis of the father’s argument derived from Courts Act 2003 s 1(1) (that the Lord Chancellor has a ‘duty to ensure that there is an efficient and effective system to support the carrying on of the business of… the family court… and that appropriate services are provided for those courts’); and, he said, that Human Rights Act 1998 s 3 requires the court to interpret s 1(1) as ‘obliging’ the Lord Chancellor to provide funding where this is necessary ‘to prevent a breach of the Convention’. (This is an argument which may work for exceptional case determination funding under LASPO s 10(1): see eg R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; but it is subject also to means assessment.)

Lord Dyson rejected this argument (paras [27]-[31]) outside the statutory legal aid scheme. For a judge to order funding in this way amounts, he said, ‘to judicial legislation’ ([31]). Reference to a ‘duty’ under s 1(1) ‘cannot be used to circumvent a clear and detailed statutory code’ (para [27]; Credit Suisse v Waltham Forest LBC [1997] QB 362) as in the case of the scheme under LASPOA; and ‘nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less important is the requirement of clear statutory authority for public expenditure’ per Lord Bridge in Holden & Co v CPS (No 2) [1994] 1 AC at 33C; and see para [28]).

In words which will doubtless be quoted by Ministry of Justice where any creative funding is proposed by a prospective applicant, and where a party is not financially eligible, Lord Dyson concluded of the scheme under LASPOA:

[31] It is a detailed scheme. I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation. In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

Thus, he said, of any power the court might have to compel the Lord Chancellor to fund proceedings, Courts Act 2003 s 1(1) cannot ‘give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings’ ([36]).

European Convention 1950 Art 6

Lord Dyson introduced his consideration of any rights which the father might have under European Convention 1950 as follows:

[47] … It is not in dispute that the father has the right under article 6 to a fair hearing. Moreover, since the date of the hearing, the judge has joined K and H as parties and has appointed a children’s guardian. The children also have rights under article 6. Nor is it disputed that the father and the children have rights under article 8 of the Convention which can only be vindicated by their having an effective and correct determination of the issue of whether Y’s allegations are true. This is because, as the judge recognised, a finding that the father abused Y would be relevant, inter alia, in assessing the risk of harm that he poses to K and H and his capacity to meet their needs.

However he qualified this immediately by reference to the relative narrowness of the law in relation to grant to guarantee Convention rights (especially Art 6), considered most recently in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 at [46] ([49] and [51]; and see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial#.VWCEU0-qqko ). Before a court could consider whether Art 6 might be breached it must consider its other case management options ([52]), such as:

  • A direction that the party cross-examines only through a legal representative, perhaps subject to findings (as for the father in Re K & H as to his ability to pay for representation);
  • That Yvonne could, in reality, be cross-examined by the judge him/herself;
  • Yvonne could be cross-examined by a ‘justices’ clerk’; or
  • A guardian be appointed for the children and they (it must be assumed) could instruct an advocate to cross-examine.

(The court does not seem to have reflected on the relative cost of (4) as compared with what Judge Bellamy had ordered, and which was the subject of the appeal.)

So what of (2): cross-examination of a witness by the judge? The court was sympathetic as to a judge’s difficulties; but concluded (at [57]) by quoting Lady Hale in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at [28] that the important point was that examination of a child be ‘fair’, however it is done – which seems rather to beg the question in issue on the appeal, but not to provide a clear answer as to the meaning of s 31G(6) and how it can be dealt with.

Conclusion: in extremis there is no answer; but what of the Attorney-General?

So what is the judge to do? First the judge must consider the case management options in para [52] (summarised above). If public funding, including exceptional case determination funding (LASPOA s 10) is not available (eg because of the means of the party concerned), and a party cannot be compelled to fund the representation of an advocate to cross-examine, the Court of Appeal in Re K & H can offer no solution.

In extremis, the court accepts the ‘concern expressed by Sir James Munby P in Q v Q (above); but can only suggest fresh statutory provision (in the absence, presumably of the courts or common law being able to assist):

[62] … In order to avoid the risk of a breach of the Convention, consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative…

And fresh ‘statutory provision’? If it costs money – any money – Lord Chancellors since 2010 have not been provident. It is likely that the Court’s urgings will be ignored, like other judicial urgings on legal aid over the past three years.

This still leaves the Attorney-General (as directed by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162). That case and the role of the Attorney in assisting the court was not considered here; but that role (Attorney-General’s Memorandum of 19 December 2001; set out in Family Court Practice at p 2869; http://www.iclr.co.uk/family-legal-aid-funding-january-2015/ ) must be considered for the full tattered picture of public funding to emerge.

OPTIONS FOR FUNDING FAMILY PROCEEDINGS

Buttressing the right to a fair trial

Equality of arms is intended to be a buttress of the right to a fair trial (European Convention 1950 Art 6). In JG v Lord Chancellor and ors [2014] EWCA Civ 656 http://www.bailii.org/ew/cases/EWCA/Civ/2014/656.html Black LJ commented on the point by reference to Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601. There may be no obligation under European Convention 1950 to make legal aid available for all civil disputes, but (had said the European Court):

[45] … [the Convention] is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.

Access to the court must include the ability to see the case through to a ‘determination’. Muscat (at para 46) breaks down the applicant’s entitlement to legal aid; but unless you are up there in the sights of a Muscat type case as a litigant – ie that you need legal aid to secure effective access to the court – you won’t have equality unless you can pay for the case yourself, or you have legal aid. The past six months has tested such inequality in family litigation, in cases where legal aid would have been available (subject to the individual’s means) pre-2013; but where legal aid is now denied because of changes which are working their way through since introduction of Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) in April 2013.

Judges: attempts to blow the Lord Chancellor’s legal aid house down

Judges can huff and they can puff; but their job is to judge, not to play legal aid politics. And, it seems, there is little they can do to blow the Lord Chancellor’s LASPOA house down (save where application is made successfully for judicial review: that has been happening incrementally; it is a subject for another day; and, for now, it is fair to observe that family lawyers are remarkably complicit with the Legal Aid Agency (LAA) in permitting its harsh regime to consume their client’s cases).

Sir James Munby P notably has huffed; and he has threatened to make the Ministry of Justice pay by a door other than legal aid. But, being a politician the Lord Chancellor craves attention. The more the judges huff and puff, yet can do nothing, the more – I suspect – he enjoys it. He knew what he was doing when he strangled the private law family proceedings legal aid budget. If the effects are working, then all the more political credit to him. Sir James’s harrumphing has the opposite effect.

Court inroads, and court harrumphing

There have been a series of inroads on the scheme in the Administrative Court in judicial review. That works for the particular case – unless the LAA go off and re-make a decision with the original outcome, but made correctly the second time. However, unless a general principle is involved the benefit is narrow and short-lived (Black LJ’s ratio for her decision in JG – as she herself accepted – was three lines in a 132 paragraph judgment). Most are but a tiny skirmish on the wide front of the battle against the Lord Chancellor.

That said, these cases are not what this note is about. It concerns the recent harrumphs of Family Division judges. Have they helped parties to find another way to funded legal representation? (One thing that can be fairly certain is the inefficacy of the lawyer’s representative bodies: what are Law Society Family Law Committee, FLBA and Resolution doing – I genuinely would like to know, but my impression is: very little).

Three recent cases have highlighted the problem; and – thus far at least – have also highlighted the powerlessness of judges. Perhaps this is right: judges judge. Others (perhaps including judges, but in another capacity) join in the trench warfare in which radical lawyers are involved, on behalf of their clients, with the Ministry of Justice. These cases include:

• Q v Q (No 2) [2014] EWFC 31, Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html
• Re D (A Child) [2014] EWFC 39 (31 October 2014), Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/39.html ; preceded by A Father v SBC and ors [2014] EWFC 6 (23 May 2014) Baker J and Re D (A Child) [2014] EWFC B77 (9 June 2014) HHJ Marshall.
• R v R (Family Court: Procedural Fairness) [2014] EWFC 48 (11 December 2014), Peter Jackson J http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html .

I have considered some of these cases more fully elsewhere (‘State funding for family proceedings after Q v Q (Private law: public funding): Part 1’ Family Law [2014] October http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law [2014] November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; and ‘State funding for family proceedings: part 3: sources of family proceedings funding’ Family Law [2014] December http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub ).

This note looks at possible options there may be for parties to be funded (save from their own resources) outside the legal aid scheme. To what extent can family lawyers press for this and for other possible forms of public funding for their clients?

State funding after Q v Q (August 2014)

In early August 2014 Sir James Munby P considered the extent to which children proceedings demanded that particular litigation funding and other expenses might be paid for by the state. Without deciding anything, nor with any other than scant recitation of authority, Sir James raised questions as to the extent to which the court has power to order funding from a public body other than Legal Aid Agency. For the individuals concerned, and for their advisers, how to apply for such funding remains a largely unresolved question; even if, since August 2014, Sir James has found out how such funding might be available.

Sir James’s discussion ([46]-[49], [54]-[57] and [77]-[79] in Q v Q (No 2)) for funding from HM Courts and Tribunal Service (in essence the same budget from which legal aid is drawn: ie Ministry of Justice) starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court (Airey v Ireland (1979) 2 EHHR 533) (para [48]; Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601; JG v Lord Chancellor and ors (above)).

It is the court which decides whether appointment of an expert is necessary (Children and Families Act 2014 s 13(6)); and if so maybe it is for the court to bear the cost (paras [56] and [57]). Similarly, if legal representation is needed for the court to discharge its duty under Matrimonial and Family Proceedings Act 1984 s 31G(6), then appropriate representation must – perhaps – be provided at the expense of HMCTS (paras [69], [79]). Three possibilities arise from Sir James’s comments:

(1) Direct application for HMCTs funding

Sir James’s comments suggest that – subject to means and merit – then application should be made direct to HMCTS (would the office of the family court where the case is proceedings be able to help with an apt address?). The following pre-conditions to grant suggest themselves:

(1) Merit would probably be dictated by the terms of case management directions; and with such direction an applicant would then have to show
(2) The applicant has no alternative source of private funding;
(3) That legal aid was not available under the LASPOA 2012 scheme; and
(4) That the applicant’s means – perhaps by reference to the Ministry of Justice approved court fees remission scheme (Family Proceedings Fees Order 2008 (as extensively amended) Schedule 2) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused, judicial review of their decision would – in principle, at least – lie to the Administrative Court. And do Sir James’s obiter comments, alongside the existing legal aid scheme create any form of legitimate expectation amongst potential applicant that funding will be provided by HMCTS? A legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision; and it must be open to doubt that Sir James is in such a position. Developments from Sir James’s comments are awaited.

(2) Assessors

The role of assessors in family proceedings is relatively overlooked by court (save in the costs jurisdiction). Senior Courts Act 1981 s 70 (applicable in county courts per County Courts Act 1984 s 63 and in the family court: see MFPA 1984 s 31E) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 explains how this can be done. The assessor could be a person whose opinion – including taking part in decision-making – might assist the court. Their role in many ways would be similar to that of a jointly funded expert. The issue of costs remains (s 70(2) above); but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds (ie HMCTS). HHJ Marshall left the parties following her rambling attempt at Re D (as it seems to me) crying out for appointment of an independent social work assessor (see para [87]-[89]); but many children lawyers might regard that a little radical.

(3) Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162, at the request of Roderic Wood J the Attorney-General (‘A-G’) arranged for an advocate to the court (‘AtoC’) to be appointed to deal with a father’s cross-examination of a mother abused by him. The role of the AtoC was limited to cross-examination of a vulnerable witness (the mother); but not as representative of the father. The assistance was for the court alone. The instruction of the AtoC, by the A-G, was dealt with under the Attorney-General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869: this memo remains basis on which the A-G deals with requests for appointment of an advocate to the court).

The Memorandum reveals that a request comes to the A-G from the court. The appointment is a matter for the A-G (paras 3-8). The Memorandum stresses that an advocate to the court ‘represents no one’ (para 4): his/her role is limited to that professionally adopted by him/her (ie not eg on instructions from any party). Request is made by the court to the A-G (para 9). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).

In Q v Q (No 2) Sir James considered how this assistance to the court would be capable of assisting the court (judge or magistrates) where MFPA 1984 s 31G(6) applies. This provision is 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.

To what extent will courts be able to invite the A-G to instruct an advocate, where a witness needs protection from cross-examination by an abuser (alleged or otherwise). The court can then, through the AtoC, ‘cause to be put’ questions to the abused person? It must be hoped that this is a question high on the agenda of the Vulnerable Witnesses Working Group.

Committal applications

In Re Ramet (application for the committal to prison) [2014] EWHC 56 (Fam) Sir James Munby P said of legal aid for committal applications:

[32] I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:
“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –…
(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”
The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.
[33] Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB).

Committal applications in European Convention 1950 jurisprudence are in effect criminal proceedings was explained by the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698 (and see there references to Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, at 677 paras 80 and 81). Application for funding is to the court by the individual whose committal is sought. Whether this is to be on the day or by separate FPR 2010 Part 18 or Part 19 application remains to be clarified by Family Procedure Rules Committee.

Lessons from administrative law proceedings

(1) Protected costs orders

The Administrative Court has developed a jurisdiction which protects an applicant for judicial review from an adverse costs order if their case is in the public interest and the applicant expects no personal gain (R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600). In the unlikely event that a parent is threatened with a costs application in children proceedings, and where such proceedings are for the benefit of a child – says the parent – then a form of protective costs order (on Corner House principles) in children proceedings is not inconceivable. Indeed such an order was touched upon by Sir James in Re D.

(2) Unfunded parties to care proceedings

In care proceedings, grand-parents, or other family carers, share thin gruel when it comes to funding of legal representation; though the court and local authority may need to rely on such family members to care for the child concerned, perhaps long-term. As was explained in Re T (Costs; Care Proceedings; Serious Allegations Not Proved) [2012] UKSC 36 [2013] 1 FLR 133, there is no guarantee that they can expect funding for representation from a local authority, even where they are caring for a child and where their means takes them outside legal aid.

And yet, can they claim any ‘legitimate’ expectation to expect any such funding? Almost certainly not; but the question bears asking. The subject is derived almost entirely from administrative law (see eg references to de Smith above; and Judicial Review Proceedings: a practitioner’s guide Jonathan Manning, Legal Action Group (2013) at 6.266 etseq).

Clarity in law: a conclusion

Lord Bingham’s first principle of the Rule of Law (2006 David Williams lecture: http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) is as follows:

First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

Making family law clear and, as far as possible, ‘intelligible’ to the averagely intelligent layman – who will not ‘usually’ have legal advice, as Lord Bingham expected – is the first challenge for reformers if funding is to remain as piece-meal as outlined in this series. And doing that critically – is this law clear to the averagely intelligent layman? – must be a part of the landscape the lawyer tries to discern through his or her Muscat v Malta spectacles.

Those spectacles are the key to LASPOA s 10 funding which so many family lawyers have so far flunked (see ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law [2014] November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub).

FORGET CONVENTION RIGHTS IN PRIVATE CHILDREN PROCEEDINGS: RYDER LJ

Convention rights in child relocation proceedings

It is fashionable nowadays in certain circles to knock the Human Rights Act 1998. In Re Y (Children) [2014] EWCA Civ 1287 Ryder LJ (with whom Longmore and Patten LJJ agreed) rejected an appeal by a father (F) who sought to relocate to the Missouri with his second wife (S), whose family were there. The judge had refused him permission. He had ‘residence’ (as we must now not call it) of the parties two children (aged 11 and 7) by consent. He and S had another child (C). The question arose as to whether the European Convention 1950 Art 8 rights (only, it seems) of that child arose in the proceedings.

Acting in person before the judge the father had argued that C’s Art 8 rights were engaged. Ryder J disagreed (though I do not say he specifically ‘knocked’ the 1998 Act):
[40] Ms Sparrow [appearing pro bono for the father] was right to be circumspect in relation to the Article 8 claim.  It is self-evident that in any application under the Children Act 1989 the Article 8 rights of the subject children and the parents are engaged and the court is a public body whose decisions may interfere with those rights.  On the facts of a particular case the application may engage the Article 8 rights of others, for example the father’s wife [S] and a non-subject child [C].
[41] Let me assume for the purposes of this discussion that on the facts of this case the youngest child [C]’s Article 8 rights were engaged.  Any interference with those rights has to be justified in accordance with Article 8(2).  The interference has to be, (1), in accordance with the law; (2) be necessary in a democratic society; and, (3), be proportionate to the object to be achieved.  Where a child’s Article 8 rights have to be balanced against an adult’s, the interests of the child will prevail.

Convention rights of all involved in the proceedings
In these two paragraphs Ryder LJ has reduced Convention rights engaged by the father’s application to C and to Art 8 only. It will be argued here that others, and their rights, are engaged by this case.

In cases such as this the starting point is often taken to be Re S (Identification: Restrictions on Publication) [2004] UKHL 47 – and this applies in any relevant family litigation – where Lord Steyn said:

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

It is relevant to consider this passage for reasons which will emerge; for Ryder LJ proceeds as follows:

[43] … Parliament has provided a legislative mechanism for [a Children Act 1989 s 8 decision] that is human rights compliant.  It is neither necessary nor appropriate for the Family Court in ordinary private law applications where there are no public law consequences to undertake a separate human rights proportionality evaluation balancing the effects of the interference on each person’s Article 8 rights so as to evaluate whether its decision is proportionate.  Ms Sparrow could point to no jurisprudence to suggest otherwise.  That position is quite distinct from public law applications where such an evaluation is required by reason of the fact that a local authority applicant is a public authority seeking itself to interfere in the rights that are engaged.
Here I must respectfully part company from Ryder LJ; and I do so on Supreme Court and Court of Appeal authority, both of which he is bound by.

As between M and F in respect of F’s application relating to A and B, the children of the family: yes, Children Act 1989 has provided each of them with remedies and the opportunity for a trial of the issues between them. However, neither S nor C are parties to these proceedings. Yet in respect of M’s opposition to the plans of F and S with the three children in their household, neither S nor C have a trial at all, let alone a fair trial. This may be as it should be, and as Parliament intended; but does it in reality make Children Act 1989 Part 2 Human Rights Act 1998 compliant? Even if it does, it does not mean that a public body decision-maker – like a judge – can simply ignore their rights (as I understand Convention rights).

Human rights: Children Act 1989 Part 2

The leading recent case on the need for family courts to have European Convention 1950 issues in mind in Part 2 proceedings is A (A Child) [2013] EWCA Civ 1104 where the recalcitrance of a mother had prevented a father having contact with his daughter over a very long period of time. McFarlane LJ’s concludes the part of the judgment which deals with human rights as follows:

[63] On the question of quite when or how it is that the proceedings as a whole have been conducted in a manner that is in breach of the family life rights of M and her father it is neither right nor possible to do more than point to these matters as being of relevance. Again, in the context of the proceedings [below], there is no one occasion about which it is possible to say that a clear breach of any Art 6 or Art 8 procedural rights occurred. That said, and despite the goodwill and best intentions of the judge, the various officers of CAFCASS and NYAS and those agencies themselves, which I take as read, the resulting process cannot be regarded as a sound or timely procedure for determining the issues that the father had brought before the court in 2011.

Of a case involving a witness (‘X’) – that is a non-party like S in Re Y – in Re A (A Child) [2012] UKSC 60, Lady Hale defined the rights of those involved. This was contact proceedings where X had made serious allegations about the father of a little girl. Lady Hale said:

[25] It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 concerned whether or not a mother should be deported. Her three children were not directly in issue. Though the children were not a party to, nor the subject of, the proceedings – exactly like C – the court was concerned that their rights be recognised. Lord Kerr explained how this should be dealt with in practice: by identifying rights and then identifying whether the court was entitled to interfere with such rights:
[144] … 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. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests. It also ensures a structured approach to the application of article 8…. where a child’s interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided.

[145] Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”….

European Convention 1950 and child arrangements

With all due respect to Ryder LJ, I cannot see that in Children Act 1989 Part 2 proceedings (sometimes called ‘private law’) there is any difference than the states of affairs described above; and two of the cases involved were Part 2 proceedings.

All those affected by any decision-maker’s decision – whatever the public authority – have rights. Despite what Ryder LJ says at para [43] above, all decision-makers – social workers and judges included – must comply with their duties under Human Rights Act 1998. Where articles which are engaged by a decision conflict, they must be balanced with all children (whose interests may conflict) being taken into account. A proportionality test – is interference justified? – should be applied where Convention rights are to be interfered with. This applies to Children Act 1989 Part 2 as to any other decision-making.

The judges concerned in Re Y may have felt that the rights of S and C were vestigial; though I wonder if they really were? On these facts I would suggest they should have been in the balance and the court’s interference expressly justified.

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

‘TRANSPARENCY’ AND THE COMMON LAW

‘Open justice’: the common law starting point

 

‘Transparency’ in family proceedings – as it is known – in reality means the opposite. It means the extent to which family lawyers permit the common law open justice principle to be restricted and made more opaque (ie not transparent at all). Recently Roberts J, described her job as ‘to find a way through somewhat rocky terrain [in a matrimonial financial case] where, as everybody appears to agree, there is no clear roadmap’ (in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2014/2314.html). Family lawyers have found it hard to read the maps in what is, essentially, relatively straightforward legal terrain if you start with the common law. It is the common law which this note outlines.

 

The starting point is open justice. Lord Bingham said that laws should be ‘publicly administered in the courts’ (‘Rule of Law’ (2006 – http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php). Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law, as summarised by Civil Procedure Rules 1998 r 39.2(1), confirms it: ‘The general rule is that a hearing is to be in public’; or as Toulson LJ (now Lord Toulson) recently explained it in Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (http://www.bailii.org/ew/cases/EWCA/Civ/2012/420.html) :

 

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

Family proceedings: exceptions to ‘open justice principle’

 

Family proceedings are bound by these rules as are all other civil (ie non-criminal) proceedings save where Parliament has said something different (eg to protect children proceedings). Exceptions exist at common law – Lord Toulson’s ‘unwritten text’. Three areas of civil and family proceedings need to be considered:

 

  • Children proceedings (including care proceedings and adoption)
  • Family money proceedings (like the Hohn case)
  • Other family proceedings: divorce, domestic abuse, parentage etc

 

Though we speak of ‘privacy’ the criterion is not that the hearing is private; but mostly that nothing, or only parts of it, can be published. Publicity is the general rule, unless something in a statute, or a court order in the particular case, says something different. Thus, even of proceedings ‘in private’, it is not illegal to publish ‘information relating to proceedings’ unless they are in respect of children or their upbringing (Administration of Justice Act 1960 s 12). That leaves open season on all other family proceedings, save as dictated by the common law or as ordered by the court.

 

The law is most easily approached as it is summarised by CPR 1998 r 39.2(3) which sets out a simple list of those types of individual case where publicity may be restricted by the court. The list includes:

 

  • A hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (eg enable someone to get rid of assets which the applicant was trying to freeze);
  • The case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (which would apply in many matrimonial financial proceedings, such as Cooper-Hohn); and
  • ‘The court considers this to be necessary, in the interests of justice’.

 

If the family court considers these provisions and then balances them against the right of the press – generally – to publish, then Mrs Justice Roberts’s map simplifies itself.

 

‘Use’ of documents following the court proceedings

 

Beyond this, a question remains as to the ‘use’ of court documents outside the proceedings. The law distinguishes between three categories of use:

 

  • The document disclosed under compulsion: ie because the law says the document must be produced (ie most documents produced in civil proceedings);
  • Documents ‘referred’ to in court; and
  • Documents where publicity is restricted but which a party wants to release (ie publicise in some way), or a third party wants to see.

 

It has long been the law that documents in category (1) – whether they are produced in public or private proceedings – are immune from being released to third parties (ie published in the broadest sense of the word, which may include to the press: know to lawyers as the ‘implied undertaking’ by the party who receives the documents not to release them further). This would cover many financial documents in family proceedings.

 

In category (2) there may be an issue as to whether the document has been ‘referred’ to in court; and this includes documents merely read by the judge as part of his/her preparation for the case. The document may then be referred to in court almost only in passing. If it is in this category, the document may be published outside the proceedings, unless the court says otherwise (it was in this type of proceedings that the Lord Toulson quote above arose). A party, or a third party to whom the document belongs, can ask the family court to restrict publication.

 

Of category (3): a particular line of family cases has arisen where the court is asked by one party or a third party (eg the tax authorities) for release of documents. On this the law is unsettled: some judges think wrong-doing (eg tax evasion) should be exposed, whatever the risk to future disclosure; whilst others – perhaps the majority – feel that possible dishonesty should be kept private, even from state authorities.

 

Conclusion

 

It is to be hoped that if the common law is followed, as outline above, the road will not be as ‘rocky’ as Mrs Justice Roberts sees it. The questions for judge and legal adviser to ask are:

 

  • Is it a children case: publicity will generally be denied subject to order of the court?
  • In any other category of family case: is there any positive reason (such as those referred to above) why the case should be heard in private (eg private financial information)? And if documents have been ‘referred’ to: should their publication be restricted?
  • If a third party or government body want to see documents: how is privacy to be balanced against the need for the court not to condone dishonesty?

LEGAL AID, JUSTICE AND THE COMPLEXITIES OF FAMILY LAW PROCESS

At the limits of family proceedings

 

A haul of very recent family law children cases throws up four which are at the extremes of family law procedural provisions; and in only one was the main adult party to proceedings represented under a legal aid certificate (it seems). Each case would try the abilities of most seasoned family lawyers; and yet it is intended by the present Lord Chancellor and Ministry of Justice that justice be achieved in such cases as these, either because (as in A Father v SBC (below)) lawyers are willing to act free (pro bono)) or by leaving the parties and the judges to do their best together (see Matrimonial and Family Proceedings Act 1984 s 31G(6) (below)).

 

In A Father v SBC, A Mother and DE (by his children’s guardian) [2014] EWFC 6 a 2½ year old child was placed with his parents subject to a care order. His mother has a mild learning disability, and the father has significant cognitive impairment. Both had been able to care for the child; though the local authority’s concerns increased to a degree where they decided that DE must be taken back into their care. The father’s care proceedings solicitor was unable to secure legal aid and therefore issued an application free seeking discharge of the care order. On consideration of the application the district judge suggested that the father should have applied for an injunction under Human Rights Act 1998 s 8(1) (restraint of ‘unlawful’ acts of a public authority); but he then refused an injunction and refused the father permission to appeal. The child was removed next day. On granting permission to appeal, Baker J said the district judge had applied the wrong test and proceeded to explain his view of the law by reference to Children Act 1989 and to HRA 1998 s 8 (paras 22 to 27), and a variety of case law (para 28 to 36), including the critical House of Lords case of Re S (Care Order: Implementation of Care Plan); Re W (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815 which confirmed that if a local authority breaches Art 8 (respect for private life) then, as here, an application would lie to the court.

 

In North Somerset Council v LW, TC and EW (by her children’s guardian) [2014] EWHC 1670, Keehan J invoked the court’s inherent jurisdiction to refuse production to the disturbed mother of the local authority’s care plan that her baby should be removed at birth, on the basis that if the mother had learned on the plan she might harm herself and her child. He also made the ‘draconian order’ of reporting restrictions and an interim care order.

 

An NHS Foundation Hospital v P [2014] EWHC 1650 saw Baker J order that a 17 year-old should have her wishes to commit suicide overridden and on an emergency basis allowed intervention by doctors and that she be sedated, if need be. This included reliance upon European Convention 1950 Art 2: that a person’s right to life be protected by law.

 

Q v Q [2014] EWFC 7 found Sir James Munby P sitting in the family court and has attracted press attention, including from the Guardian.[1] The case concerned a father who spoke almost no English and who was said by two opinion witnesses to pose a threat to his son. On that basis his legal aid was withdrawn. The judge speculated then as to the needs of the father if justice was to be done in respect of his application: that his case must be dealt with justly and the parties be on an equal footing (FPR 2010 r 1.1; and European Convention 1950 Art 6(1)); and in his view, there were matters which ‘could properly be challenged, probed, by someone representing the father’. He described an ‘impasses’ in proceedings of this nature.

 

Legal aid and an impasse

 

In Q v Q the President throws down a gauntlet to the Lord Chancellor – as he says ‘merely identifying possible arguments’ (para 19). In para 18 he identifies some of these arguments as:

 

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing…

 

Secondly, he suggests that if only one party is legally aided the cost of the whole case should fall on them (it is not clear how he proposes that that should happen: already represented parties must bear the expense of preparing bundles and no doubt many other costs where another party is unrepresented). Finally, he says:

 

… It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

 

Much of the cost and injustice of the present process is the complications imposed in the family procedural rules by the recent proliferation of practice directions and guidances (the A Local Authority case includes ‘guidance’ approved by the President, and on 5 June 2014 Mostyn J produced a Statement on the efficient conduct of financial remedy final hearings… ‘authorised’ by the President (but not a practice direction which acquires approval by the Lord Chancellor)). These complications alone could surely justify representation with legal aid under the principles in Airey v Ireland (1979) 2 EHHR 533 and Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601, because of the sheer complexities of the process imposed by the present family courts administration. This presents an irony of which Sir James seems unaware.

 

Further he does not draw attention to Matrimonial and Family Proceedings Act 1984 s 31F(6) which bears repetition in this context:

 

(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 considered the possibility of effective cross-examination by or on behalf of the father. He recognised constraints on cross-examination by the father by ‘challenge [to] his own expert’ (surely any expert is the court’s ‘expert’: FPR 2010 r 25.3); but went on:

 

… I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

 

This was an opportunity for Sir James to recall that Parliament expects judges to perform this cross-examination role ‘in the interests’ (MFPA 1984 s 31G(6)(b)) of the unrepresented party and to recall for all of us – litigants in person and lawyer alike – how this may be done (especially where cross-examination is by a bench of lay justices).

 

Urgent remedies and exceptional case determinations

 

These cases provide a cross-over between rights under European Convention 1950, unusual interim and urgent remedies and legal aid. (Only the North Somerset case is likely to have seen legal aid guaranteed. In the parallel North Somerset Council v LW (by her Litigation Friend the Official Solicitor), University Hospitals Trust Bristol and ors [2014] EWCOP 3, Keehan J dealt with costs as between Official Solicitor, a local authority and three NHS trusts (mostly UBHT): the costs statutory provisions run to seven pages of a 14 page judgement: thus do our rule-makers – apparently without a blush – improve the lives of those without mental capacity and of the courts which deal with them.)

 

Baker J concluded his judgement in A Father v SBC with the following plea:

 

[51] Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian.

 

Baker J then recorded that the father’s lawyers were acting pro bono, and that it was unfair on parties that they should only have representation if able to find help in this way. The position here was compounded the particular learning difficulties of the father. In this case the father plainly ‘lacks capacity to conduct the litigation’ (para 53). And as can be seen from the judge’s own meticulous explanation of the law and its cross-over between Children Act 1989, rights and a variety of case law, the law in the case would be at the limits of most family lawyer’s knowledge. The chance of fairness for a parent with learning difficulties is negligible (if fairness requires even a basic understanding of the case you are seeking to present).

 

The judges do not go on the consider the two cases – Q v Q and A Father v SBC – in the light of Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 (exceptional case determinations under s 10(3): for a background to this legal aid jurisdiction, see http://wp.me/p4jaDx-5y). That must be the next step, since on their view of each case the President and Baker J both found a European Convention 1950 aspect: Art 8 and Art 6(1) (in the context of a fair trial in the difficult circumstances posed by both cases); Art 10 and Art 2 in the P case. And, it must be recalled, Art 14 (discrimination) might apply in both Q v Q and A Father v SBC.

[1] http://www.theguardian.com/law/2014/jun/09/top-family-judge-adjourns-custody-case-legal-aid-impasse; and http://suesspiciousminds.com/2014/06/09/q-v-q-an-impasse/