CIVIL LEGAL AID: EXCEPTIONAL CASE DETERMINATION

Exceptional case determination

Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 represents the only way that a person can obtain legal aid for civil legal services (civil legal aid), outside the narrow spectrum of cases – domestic ‘violence’, forced marriage etc – covered by Part 1 Sch 1 of the Act.

Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services).

LASPOA 2012 s 10(2) provides:

(2) This subsection is satisfied where the Director—
(a)has made an exceptional case determination in relation to the individual and the services, and
(b)has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).

LASPOA 2012 s 10(3) defines what is an ‘exceptional case’ (as further explained by Black LJ in JG (below)):

(3)For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

It is important to stress here that ‘exceptional’ is not a general term – as eg rare, highly unusual etc – but refers solely to the fact that grant is required to comply with UK responsibilities under Human Rights Act 1998. If legal aid is required for that purpose it is, by definition, ‘exceptional’ and s 10 is satisfied.

European Convention

The main rights under the Convention in play in most cases will be Art 6(1) and 8:

Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Freedom from discrimination (Art 14) and freedom of expressions (Art 10) will also be significant, in appropriate contexts.

Children and Convention rights

The significance of children in any Convention assessment must be recalled always: nothing may be given ‘greater weight’ than their interests says the Supreme Court (see Lord Kerr below). If a balance is required to be struck between their, and other, Convention rights (Convention ‘proportionality’), 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 local authority of government department) (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 the parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 Lord Kerr explained the primacy of a child’s interest:

[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.

Convention rights: exceptional cases

In JG v Lord Chancellor and ors [2014] EWCA Civ 656 Black LJ and the Court of Appeal considered s 10 in the context of legal aid and payment for an expert’s fees in civil proceedings. The meaning of ‘exceptional’ in s 10(3) was explained by Black LJ at para [110]. She stressed that, as a matter of ordinary statutory construction, all that s 10(3) does is to produce a ‘description … not a test or additional hurdle’ for the applicant (and see Coulson J in M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin) at para [58]).

Both judges stress the ordinary meaning of the words in s 10: that ‘exceptional’ there means only that the application is outside Part 1 of Sch 1, not the facts of the application are in some way ‘highly unusual’ or out of the ordinary.

The QB Divisional Court (Moses LJ, Collins and Jay JJ) has gone further. In R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (at para [13]) Moses LJ defined s 10 as catering for applications for funding as two-fold: mandatory (where a ‘substantial interference’ with an Art 6 right might occur) and discretionary (where there is ‘a risk of such breach’).

I understand that the PLP case and Gudaviciene below may be under appeal to the Court of Appeal; but for the present they represent the law.

Guidance

LASPOA 2012 s 4(3) includes amongst the duties of LAA decision-makers, that they must ‘(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions’. Guidance must be in accordance with the law. In particular, it is a basic principle of administrative law that a public body may not ‘fetter’ a discretion entrusted to it by statute, since Parliament confers discretion to ‘promote the policies and object of [an] Act’ (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).

Guidance may not impose inflexibility where its empowering statutory provision does not provide for it, nor limit the scope of a decision-maker’s discretion beyond that which is anticipated by the statute (R v Secretary of State for Department for the Home Dept exp Venables [1998] AC 407, [1997] UKHL 25 at 496-7).

Lord Chancellor’s exceptional funding guidance (non-inquests) (undated) (‘the Guidance’) represents guidance under s 4(3). Its legality was considered by Collins J in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin). This was a series of immigration cases; but the principles applicable to guidance to decision-makers apply in all grants of civil legal aid.

Collins J describes the Guidance thus:

[9] … [It] lays down some principles which the Director is to apply and some of those are said by the claimants to be unlawful. Paragraph 6 notes that s10(3)(b) does not provide a general power to fund cases which fall outside the scope of legal aid. It is, it is said, ‘to be used for rare cases’ where the risk of the breach of material rights ‘is such that it is appropriate to fund [para 7 which is cited in full including]:
(7) … Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).

He points out that the Guidance bases its approach to grant of legal aid by reference to Airey v Ireland (1979) 2 EHHR 533 and X v UK (1984) 6 EHRR 136. From the latter case the Guidance derives its ‘practical impossibility or obvious unfairness’ test (para [15]). But is this the correct test? Collins J says it is not:

[19] The ‘overarching question’ posed in the Guidance is ‘whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.’ This is said to be a very high threshold. As I have said, it is based on X v UK. In setting out this test, the Commission referred to Airey v Ireland.

After full consideration of relevant case law Collins J deals with the ‘threshold’ question at para [28].

• There must be ‘effective access to a court’: for example a litigant must be able to present all relevant evidence and ‘engage with the process’ (AK & L v Croatia (Application No 37965/11: final on 8 April 2013));
• There must be ‘overall fairness’; and
• That where appropriate a decision-maker must have in mind Art 8 (respect for family life) to which the Guidance, he says, does not refer adequately (para [51]; and see H(H) and comments of Lord Kerr above).

He held that the X v UK ‘practically impossible’ test (used by LAA decision-makers) sets the bar ‘too high’ (para [28]) for s 10; and that to this extent the Guidance is unlawful (para [128]).

Overriding of fundamental rights

Further it is necessary here to bear in mind two further basic principles of administrative law: first, the ‘fetter on discretion’ point made in Gudaviciene (above); and, secondly, that fundamental rights of an applicant for legal aid can only be overridden by specific statutory provision. This point was made by Moses LJ in R (ota PLP) (above). The case concerned delegated legislation proposed by the Lord Chancellor to limit legal aid to those with a close connection to the United Kingdom (what he terms ‘our people’). PLP said the Lord Chancellor had no power to do this.

The minister accepted his statutory instrument as discriminatory, but was such discrimination lawful? Reading Art 14 (discrimination) with Art 6(1) the Court of Appeal said the delegated legislation was unlawful. Thus of the right to legal aid for representation in court proceedings Moses LJ said:

[53] The obligation of a state to provide legal assistance in some circumstances was not in dispute. The principle is now well established both in domestic and Strasbourg jurisprudence. The right to legal aid can be invoked by virtue of Art 6(1) of the Convention (Pine v Law Society (No 1) [2001] EWCA Civ 1574). The duty to provide legal aid in some cases is no more than an aspect of the principle that the state is under an obligation not to impede access to court. Section 10 of LASPO is the provision adopted to meet the United Kingdom’s obligation to provide legal assistance in those cases where a failure to do so would risk a breach of Convention or EU rights.

A person speaking only a foreign language in English courts, might be in more need of representation that someone who can at least read the language (a point which recurs in Q v Q [2014] EWFC 7 and recurs in the later version of that case). The same would apply to a person confronted with difficult legal principles or of procedure.

Grant of legal aid: ‘rights that are practical and effective’

In JG black LJ cites Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601. This she says is the modern authority for the proposition that there is no absolute obligation under European Convention 1950 to make legal aid available for all civil disputes. That is not the only criterion (as Collins J also demonstrates). Thus Muscat says that the Convention is concerned that mere lip-service to rights is not paid by legislators; but the Convention:

[45] … 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’; and Muscat (para [46]) breaks down entitlement to legal aid as follows:

(1) That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case;
(2) Legal aid should be available guaranteed – part of a State’s ‘obligation’ – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1); and
(3) There should be active intervention by a State to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’.

Exceptional case determination: application

If the language of s 10 is construed within the terms of the policy behind the section – to ensure United Kingdom complies with its convention obligations under Art 6 – then it can be seen that ‘exceptional’, as Black LJ explains in JG (at [110]) describes only a category of grant.

As the law stands the Lord Chancellor’s Guidance is unlawful to the extent that it seeks to fetter a decision-maker’s discretion in grant of legal aid. Any applicant for family proceedings legal aid where, for example, his/her access to the courts is for practical purposes impeded and the fairness of a trial made impossible, can – subject to financial eligibility – rely on s 10(3) to seek a grant of legal aid. The threshold for determination of coming within s 10(3) is, as Collins J explains in Gudaviciene, that a litigant can properly and fairly engage with the court process (paras [28] and [51]).

RIGHT TO PUBLISH WARDSHIP CASES: HOW FAR?

Publicity: further scope for a criminal charge

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

(a)where the proceedings –

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

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

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

 

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

 

Relaxing the restraints on publicity

 

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

 

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

 

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

 

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

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

 

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

 

Court promoting publicity

 

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

 

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

‘TRANSPARENCY’: NOT ALL ABOUT CHILDREN: publicity after Cooper-Hohn

Case management, publicity and Cooper-Hohn v Hohn

The judgement of Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) raises important questions about publicity in financial remedy proceedings. The judge found herself required to give ‘a case management’ decision in a substantial money case where ‘accredited members of the press have been present, as they are fully entitled to be’ (FPR 2010 r 27.11(2)(f)). The question for her was: ‘[2].. the extent to which [the press] should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.’ The press were separately represented. Application was made for reporting restrictions to be lifted.

Roberts J refused to impose full reporting restrictions (as Mr Hohn wanted) but restricted the press, on terms which were less than Mrs Cooper-Hohn want, as follows (para 98 of her judgement):

The media shall be prohibited from publishing any such report that refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.

Roberts J describes her job (at para 61) on reporting restrictions as ‘to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap’. She concluded – looking at her decision through the prism of European Convention 1950 Art 8 (respect for private life) and 10 (press freedom); and perhaps Art 6(1) (right to a fair trial; administration of justice) – that she should make the restriction order (above). She resolved the parties and the press’s Convention rights as follows:

[176] I find that the balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, in so far as it relates to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, falls firmly in favour of privacy in relation to financial matters being maintained.

A guide through ‘rocky terrain’: start from the common law

This article attempts to provide a guide through the ‘rocky terrain’ – limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. I shall suggest here that the best starting point is the common law, as summarised most succinctly in Civil Procedure Rules 1998 r 39.2.

First it is important to be clear as to the threefold categorisation of family proceedings: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960 s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960 s 12(1) are likely to be rare in financial remedy proceedings.

The starting point is the common law rule that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished ‘unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally’ said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469. This position is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’. CPR 1998 r 39.2(1) asserts: ‘The general rule is that a hearing is to be in public’.

This ‘open justice principle’ and its place in the common law was explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as:

[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 hearings ‘in private’

Confusion in proceedings covered by FPR 2010 arises from the fact that FPR 2010 r 27.10(1) asserts that all proceedings under FPR 2010 shall be held ‘in private’. This suggests that there is a presumption of privacy for family hearings. The common law and Convention jurisprudence provides the opposite. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies. Nor is it clear on what underlying legal principle, statute or common law, the rule-makers derive their rules on attendance at private hearings (FPR 2010 r 27.11), especially of the press (‘accredited representatives of news gathering and reporting organisations’: r 27.11(1)(f)).

If tested it seems unlikely that FPR 2010 rr 27.10 and 27.11 would be found to be intra vires any established principle of law or Convention principle. Convention jurisprudence which is the starting point for any restraint on publicity (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn at [23]). Of the status of rules as law: rules ‘cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised’ (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, per Buxton LJ at [8]).

When in contempt of court?

This note therefore proceeds on the basis that, other than in proceedings covered by AJA 1960 s 12, any restriction of publicity, whether as to attendance at a hearing or of the reporting of a hearing, must be justified in law. Exceptions set up by the common law relate to the hearing of proceedings and, separately, to the documents in those proceedings and their ‘use’. These exceptions are set out in CPR 1998 rr 39.2(3) and 31.22(1). The first rule provides that a hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (r 39.2(3)(a); see eg the Leveller Magazine case (above)); the case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (r 39.2(3)(c)) which might have applied in Cooper-Hohn); and ‘the court considers this to be necessary, in the interests of justice’ (r 39.2(3)(g)).

A separate jurisdiction also arises from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides ‘use’ questions and the publication of proceedings overlap. CPR 1998 r 31.22 provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

There is no equivalent to rr 39.2 or 31.22 in FPR 2010. The court has a separate power to restrict the use of parties’ names (CPR 1998 r 39.2(4) which was at issue in eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), Mostyn J.)

Publicity in financial remedy proceedings

Issues of publicity for a hearing or of documents therefore arise in financial remedy proceedings in the following contexts:

(1) Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
(2) Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
(3) Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
(4) Even if (3) applies, whether a party can be restrained from use of the document.

The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 provides a starting point:

[76] Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

Reporting of hearings in open court

CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. A search of Family Law Online reveals references to the rule only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108; though in DE v AB [2014] EWCA Civ 1064 Ryder LJ dealt with privacy without any reference to r 39(3)). In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.

Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

If a document has been referred to or read in open court it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2:

… [25] (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.

In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are like to be resolved (see eg Allan v Clibbery) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)) as Mr Allan tried unsuccessfully to do.

Release of documents to a third party

A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO [2014] EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents. Each case, he emphasised, turns on its own facts (Crest Homes v Marks [1987] AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd [2004] 1 WLR 1479 at [36]). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104, CA at [47], [52]; but see eg Y v Z [2014] EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).

Conclusion

A number of the principles which arise here – and which arose in the Cooper-Hohn interim hearing – cross over from (say) an initial application for a case to be in private (CPR 1998 r 39.2(3); ie to lift restrictions on publicity in financial remedy proceedings) to the separate question of whether the court gives permission for use of documents otherwise restricted from release by their having been disclosed but not referred to in court. The first point for any applicant under these areas of law is to be clear into which category of publication of a hearing or release of documents the application arises, and then to apply the principles outlined above to the application in question.

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/

FC-Day-42: OF OMMINOUS PRONOUNCEMENTS … AND FREEDOM TO PUBLISH

 

Unlawful law-making

As FC-Day-42 becomes FC-Day-41, the silence remains eerie. One commentator, solicitor Marilyn Stowe (http://www.marilynstowe.co.uk/2014/02/20/mixed-messages-from-solicitors-journal/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+MarilynStoweFamilyLawAndDivorceBlog+%28Marilyn+Stowe+Family+Law+and+Divorce+Blog%29) has lamented:

I imagine that few of us are opposed to modernisation. We accept that within the current system, there is plenty of room for improvement. But with so many grey areas and no clear direction, the present effect is one of voices chattering away in the darkness. How long must we wait before somebody turns the light on? More worrying still: when everything is illuminated, what will we find there?

Those of us who follow Sir James Munby’s increasingly ominous pronouncements may wish to dwell in the darkness a while longer. After all, if recent developments such as the demolition of legal aid and the rise of self-representation have shown us anything, it is that family lawyers are increasingly undervalued by those with the power to bring about change. 

‘Ominous pronouncements’, indeed. Practice guidance with only the authority of his office; but no statutory clothing (see eg Constitutional Reform Act 2005 which explains how practice directions etc are made); case note guidance with no right of those it is aimed at to respond (UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam),  Mostyn J http://www.bailii.org/ew/cases/EWHC/Fam/2013/1735.html (solicitors and Imerman documents); Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) Pauffley J http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html) (magistrates’ facts and their reasons): this is an unlawful way to make law. Judges, in this context are administrators (ie they are not adjudicating on any issue) and should proceed with consultation etc accordingly. This was explained by the Court of Appeal in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171. 

Transparency

Elsewhere, the High Court (per Laws LJ in the Divisional Court) questions whether an aspect of the Terrorism Act 2000 infringes the rights of free expression under Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 10 (Miranda v Secretary of State for the Home Department & Ors [2014] EWHC 255 (Admin)
http://www.bailii.org/ew/cases/EWHC/Admin/2014/255.html).

Laws LJ reminds readers that freedom of expression (per Art 10) has two distinct aspects (in the context of press freedom):

(1)   A right of self-expression which belongs to everyone so long as we do ‘advocate no crime or nor violate the rights of others’ (para [45]); and

(2)   A sub-class of this right: ‘journalistic expression’ (para [46]).

So, he goes on, the journalists’ right depends upon and serves the right of his readers (para [46]). In the modern family court there is a rush to publish all, with minor redactions. I do not wish to appear Luddite about this. However, I do beg Sir James Munby P to bear in mind also very carefully the welfare of children involved, and of their families and others involved; and to recall always the priorities – and limitations on the press – to which Laws LJ refers. The ‘open’ court aspect is only one part of Art 6(1) (right to a fair trial); and Art 8 (right to family life), though subservient to the other two, is always there.