Secrecy and disproportionality in the family courts

Attempts to ‘conflict out’ a party to family proceedings

 

In ZS -v- FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017) Williams J allowed a rich (I assume) Russian to spend two days arguing whether or not his wife (who may of not be FS: see later) should be allowed to use Ray Tooth (RT) whom she had chosen to instruct. In the meantime the ‘representative’ (OE) of the husband (say, ZS) said he had been to see RT, who could not remember the meeting. The judge assumed this was an attempt by ZS to ‘conflict out’ (a new verb?) FS so that she could not use Tooth to act for her. ZS’s application was unsuccessful.

 

The judge found OE (why ever was his case kept anonymous) to be ‘blasé about … accuracy in matters evidential’ (as the judge put it at [68]). Others might have said OE was lying. The case was heard in ZS’s absence, though with ranks of lawyers and OE present and a witness for ZS.

 

Why does all this matter? There is a relatively well-developed jurisprudence in relation to conflicts of interests if a professional who owes a duty to one client, and then takes on another with a conflicting interest. Like the accountants in Bolkiah v KPMG [1998] UKHL 52, [1999] 2 AC 222, solicitors may not do it. In the field of matrimonial litigation the issue has arisen, for example, in Davies v Davies [2000] 1 FLR 39, CA (another case in which RT could not remember a client) and Re Z (Restraining Solicitors from Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132 Bodey J. The subject is well-aired. So too is that of legal professional privilege which is the other aspect of the case which looks at law, though in connection with mostly well-known cases.

 

It is what the case does not look at – but perhaps should have done? – is what this note considers: first, the question of proportionality; and, secondly, at release of information to help us ‘make sense’ of the case.

 

Overriding objective; and what may have been left undone in ZS v FS

 

Since the end of the 1990s there has been a real concern amongst civil lawyers to keep cases within bounds (ie ‘proportionality’); and this expresses itself in what were intended in Civil Procedure Rules 1998 Pts 1 and 3 to be tighter case management rules, incorporated 12 years later into Family Procedure Rules 2010 (FPR 2010) Pts 1 and 4.

 

This application – it was an interim hearing which I assume ran under FPR 2010 Pt 18 – lasted two days. It engaged a QC per party each with a junior (with solicitors sitting behind, and as witnesses). It resulted in a 72 paragraph judgement as well as, within that and in addition, a three page chronology. The court fee for an application like this (if any was charged) this is £155 (ie the payment to the Treasury for all that, plus ushers, court staff, heating lighting etc).

 

The application – which would normally be dealt with on paper (perhaps with short submissions) by a district judge – was ‘a hearing other than the final hearing’ (FPR 2010 r 22.7), so ‘the general rule is that evidence at [such] hearings… is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise’. There is nothing in Williams J’s judgment to say he had considered r 22.7, and what he had concluded from r 22.7 to make him decide upon a full hearing on evidence being called.

 

We do not know why the case was not dealt with summarily on the papers. Outside London, you would expect a case like this to be dealt with by a district judge on the papers; with maybe short submissions only.

 

Proportionality and expeditious disposal

 

And then the overriding objective and proportionality in FPR 2010 terms, surely, comes into it? FPR 2010 r 1.1 requires that cases be dealt with ‘justly’; and this surely includes the court administrators and judge giving thought to others – others more deserving, if not so rich? – who might want a High Court judge’s time. ‘Dealing with a case justly’ (FPR 2010 r 1.1(2):

 

(2) … includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;… and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

True it is that the judge says (at [32]) he found it very helpful to hear ‘the parties give oral evidence’ (though did this include the husband? – I think not); but surely it must have been possible to devise a summary basis for the application and for it to be heard in a fraction of the 2 days and by a district judge? This is what the ‘overriding objective’ and its appeal to proportionality would anticipate.

 

We send children whose parent says they are ‘at grave risk [of suffering] physical or psychological harm’ (Hague Convention Art 13(b)) back to their former homes by a summary (ie no oral evidence) process. Children are rarely heard. An application like that of ZS should surely be treated as less important than the future of a child? After all, the worst would be that his wife could not have RT as her lawyer. Excellent though he may be (had the wife lost on this application), there are others…

 

Banks of lawyers – family lawyers who would know the rules for family proceedings – were involved in this case. Did any of them draw to the judge’s attention to FPR 2010 rr 1.1, 18.7 or 22.7? If they did, the judge does not say so.

 

Hearing documents and a ‘skull painting’…

 

The other unwitting aspect of the case is that of ‘hearing documents’. This is a well-trodden path. This case only shows the increasing need for it, if judges are to be able to keep their judgements relatively economical in length.

 

‘Transparency’ it has been suggested from judges at the highest level (see eg Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338’ Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 and Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618) could – must, in the interests of openness – be increased by release of certain documents read by the judge outside the hearing. This would enable those who attend court or otherwise want to ‘make sense’ (Lord Scarman’s term) of proceedings (eg witness statements, skeleton arguments etc suitable anonymised).

 

The essential elements of ZS’s main application before the court (for a declaration of the validity of a Russian divorce) are said to have been ‘set out at B3’; and an unexplained ‘skull painting’ (referred to only once in the judgement ay [15]), are listed amongst a number of items which are intended show that ‘the meeting’ with OE took place. An understanding of the declaration application may be essential to an understanding of the judge’s decision; the ‘skull painting’ less so. The reader of the judgement (as would have been the case for anyone attending the hearing) can only make limited sense of it, without also being able to read certain basic documents.

 

What price proportionality?

 

The reality of transparency and the understanding of proceedings will be the greater if this issue – for courts which sit in private and in open court (as the example of the Guardian v Westminster case makes clear) – is looked at soon; and see Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

We shall never know what part ZS’s wealth had in the generosity of High Court time given to him. It certainly was not the difficulty of legal principle involved (despite the array of learned counsel deployed to argue it). Most of the cases cited are well-known; and do not form any express part of the judge’s decision-making (ie in one paragraph he merely lists the cases he has been referred to).

 

Secrecy over release of court documents is still not part of any ‘transparency’ procedure in any civil proceedings; and has nothing to do with a party’s money. However, it is a matter for thoughtful review of court process; and of anonymisation of read documents for private hearings.

 

And why anonymity?

 

Finally, it might be mentioned in passing: why was this case in private and why anonymity for the mysterious OE? The husband is found to have been ‘strategising and manoeuvring’ ([65]) over the case and aspects of OE’s evidence ‘are patently false’ ([68]). As Tomlinson LJ said in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 142 of a first instance decision not to publish:

 

[87] … It is I think unrealistic to assume that the revelation of dishonesty or other misconduct in the course of the litigation of a private dispute, particularly a matrimonial dispute, will necessarily attract any great interest from those not immediately affected by the outcome. I agree that dishonesty is not ordinarily entitled to confidentiality….

 

And any decision on anonymity is for the judge himself to address (R v Legal Aid Board exp Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA), since the parties are likely to want to keep this sort of hearing private (Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J).

# Humanrights and children’s rights: interference with publicity

Publicity: ‘interplay’ of public interests in court proceedings

 

Family proceedings, governed by Family Procedure Rules 2010, are heard in private save where rules or court order otherwise provide (FPR 2010 r 27.10). The press may be admitted (r 27.11(2)). Alongside this Sir James Munby P is keen to encourage legitimate reporting of family courts (Transparency in the family courts: publication of judgments:  practice guidance issued on 16 January 2014 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf).

 

Human rights under the European Convention 1950 govern privacy, with the confidentiality of family – especially children proceedings – alongside the rights (such as they are) of the press to publicise information about family proceedings. Convention articles 6, 8 and 10 will mostly be in play. Generally the fact of Art 6 (right to a fair trial) will not be in question, as explained by Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591:

 

[15] … Article 6 is, however, relevant so far as it provides that “the press and public may be excluded from all or part of the trial” for a variety of reasons including “where the interests of juveniles” so require. The purpose of a public hearing is to guard against an administration of justice in secret and with no public scrutiny and to maintain public confidence….

 

The balance which must be struck, said Lord Steyn, is mostly between Art 8 (right to a private and family life) as against Art 10 (freedom of expression). But first, Human Rights Act 1998 s 12(4) must be born carefully in mind when any decision is to be made about publicity:

 

[16] By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right.

 

HRA 1998 s 12 gives particular prominence to ‘freedom of expression’, and in particular it says:

 

(4)The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)the extent to which—

(i)the material has, or is about to, become available to the public; or

(ii)it is, or would be, in the public interest for the material to be published;

(b)any relevant privacy code.

 

Interplay of public interests

 

So, said Lord Steyn, in looking at the ‘interplay’ between Arts 8 and 10 – that is of the public interests of privacy on the one hand and of freedom of expression and openness of court process on the other – the balance must be struck with the following in mind:

 

[17] … First, neither article [Arts 8 or 10] 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.

 

For example, in Birmingham City Council v Riaz, AB & Ors [2015] EWHC 1857 (Fam), [2016] 1 FLR 797 (and see https://dbfamilylaw.wordpress.com/2015/07/03/child-sex-abuse-lifetime-reporting-restriction-for-survivor/) Keehan J granted a lifetime reporting restrictions order to a young woman who had been the subject of severe sexual abuse. He cited s 12(4) and then confirmed that he had had cited to him JXMX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 (where anonymity was granted to a child under an infant settlement order; and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). He explained his view where the anonymity of a child was concerned in the light of s 12(4) and the interplay of Arts 8 and 10:

 

[13]   It might be thought that the decision of the Court of Appeal in JXMX, in recognising that lifelong anonymity orders should normally be granted in a particular class of case, ie infant or protected party settlement approval hearing, does not sit easily with the long line of authorities emphasising the importance of open justice and the freedom of the press. For my part, I would not share that view. Rather the decision reflects the emphasis the courts now place on the need to accord due respect to the Art 8 European Convention rights of litigants, especially of children, young people and protected parties balanced against the Art 10 rights of the press and broadcast media. The position is encapsulated in the observation of Moore-Bick LJ when he said, at para [29]:

The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant’s identity.

I respectfully agree.

 

In JXMX and Birmingham v Riaz the rights of the child to anonymity took precedence over any other, including the rights of the press seen in terms of HRA 1998 s 12(4).

 

Children’s rights: another dimension

 

And when it comes to the rights of children in civil proceedings generally, in a short judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26 [2016] 2 FLR 251 (where the Supreme Court continued an interim reporting restrictions order in a case where PJS was threatened with media exposure of his ‘three way’ sex proposal; and where full prominence was given Lord Mance in the Supreme Court to a consideration of s 12(4)) Lady Hale reflected on a child’s rights and protection of their interests. She explained that at a final trial of the injunction application ‘the likely harm of the children’s interests’ must be considered (para [73]). Their rights add another dimension to the injunction balancing exercise:

 

[78] In the leading case of In re S (A Child) (Identification: Restrictions on Publication) ([above]), very careful consideration was given, at first instance, in the Court of Appeal and in the House of Lords, to balancing the public interest in publishing the name of a woman accused of murdering her child against the welfare interests of her surviving child who was living with his father. The public interest, in the legal sense, of publication was very strong. There was expert evidence of the welfare interests of the surviving child. It could not be more different from this case. As Lord Mance has demonstrated, there is no public interest in the legal sense in the publication of this information. There is no expert evidence of the interests of these children. These are all matters which should be properly argued at trial, not pre-empted by premature disclosure.

 

In any proceedings – criminal or civil – the interests of children affected by publicity and the outcome of the proceedings will have high priority. In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338 in the Supreme Court in a deportation case, where the families of the proposed deportees were affected by any decision, Lord Kerr said (substantially in agreement with Lady Hale):

 

[144] I have found the argument about the place that children’s interests should occupy in the hierarchy of the court’s consideration of article 8 most persuasively expressed in the Coram Children’s Legal Centre note submitted in the course of this appeal. 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. 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.

 

As can be seen, Lord Kerr speaks in classic rights language: what are the rights of any children concerned; what is the extent of the interference proposed by the parties and the court; and what (if any) is the level of justification for that interference with the child’s rights? This sequencing is the starting point for wider consideration of the issue of children’s right as human rights with which this article is concerned.

 

In Re S (Identification: Restrictions on Publication) (above) the issue was the anonymity of the mother in her criminal trial; but, agreeing with Hedley J at first instance, the House of Lords held the interests of publicity for a criminal trial out-weighed the Art 8 interests of the child whose identity might be discovered. If Lord Kerr’s sequencing approach and Lady Hale’s PJS comments were added to the child’s rights mix in a similar application today, it is tempting to wonder if the decision in Re S would be the same?

A FAMILY LAW REFORM MANIFESTO

A hundred days till the election

With a hundred days to go to an election, my top ten list for law reform (mostly family) would be as follows:

1 Clarification of law – all primary law, procedural rules and other delegated legislation (regulations, guidance and the like) must be written in language which is understandable by the averagely intelligent lay-person (with a dictionary). The procedures it describes must be logical and follow common law rules. Children law procedure in one part of Family Procedure Rules 2010 (Part 12) with 16 practice directions is an insult to all of us; and an unjustified assault on the many lay people who wrestle with litigation over their children. Legal aid and its regulations add another dire dimension of opacity of the so-called rule of English law.

2 Mediation first – the mediation process should be clearly separated from the litigation process. In the public mind the point of entry into the family breakdown system should be mediation first. It would follow from that, that solicitors’ organisations (eg Law Society, Resolution) should look very carefully at the extent to which they can fairly, and without conflict, represent both mediators and litigators.

3 Cohabitation law – must be brought into line (as it has been for most children proceedings: welfare and money) with other law on family breakdown (eg in relations to parties’ finances and rights to their home).

4 Legal aid – in the modern austerity climate a wholesale return to pre-1999 family law legal aid is impossible; but circumstances where the tax-payer can be banker (via the statutory charge must be investigated); domestic and other abuse must guarantee legal aid (graded domestic violence: how sick is that?); other forms of funding – without too much complexity (relative ‘clarity’ per 2 above) must be found.

5 Case management – effective case management is the obvious ‘something must be done’ of Munby J’s plea; but now he is in a position to do ‘something’ he ignores the point. The judiciary has the remedy in its own hands; but it must take hold of it:

• Since case management has been around since at least 1999, it seems judges in family proceedings need training
• Issues must be identified at the outset, and the evidence relevant to these issues kept under control
• Issues which need a preliminary decision – sometimes so obvious – must be identified and disposed of

6 Parallel case management and mediation – case management must go hand-in-hand with mediation; on a parallel (ie parallel lines never meet, save in infinity) basis. There will be symbiosis between mediation and case managed litigation: sometime the mediator will control this; sometimes the court. The point is that the court process – and therefore the marriage breakdown lawyers – does not control agreement or disposal on breakdown. In-court family dispute resolution, if conducted by the court, must be done by trained judges; not on the hit-and-miss basis at present.

7 No fault divorce – divorce is an administrative process, not part of the court/litigation process; and this should be recognised, given effect to and – whilst on the subject – it should be made non-fault.

8 Protected individuals – or ‘vulnerable witnesses’, must be taken very seriously. It cannot be just one rule change, as now suggested by the witness working group. My response to the 31 July Interim Report of the working group is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/; and I urge my recommendations there as part of this manifesto.

9 Children law – the child sex abuse inquiry which is proceedings so falteringly can produce ideas (see eg https://dbfamilylaw.wordpress.com/2014/10/26/csainquiry-what-the-inquiry-must-consider/ ) for child protection law reform. It is urged to do so such as looking a child confidentiality, whether Working Together is working and so on.

10 ‘Transparency’ – The so-called ‘transparency’ debate is wrongly named (since it implies that a closed court is the starting point). Its real meaning is the extent to which family courts can lawfully made private – such as where children’s private lives are in issue. The present debate must be scrapped, the rules made lawful and privacy in family proceedings looked at in principled way. Any case starts from open court, and the law defines where privacy should start (and privacy will rule, most certainly, in many family proceedings).

MUNBY: LISTEN TO THE INDIVIDUALS AFFECTED

What do the young people think?

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

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

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

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

Open court, a free press and protected individuals

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

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

President: stop and think of the protected individuals concerned

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

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

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

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

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.

CONSULTATION: SIR JAMES IS BUT ONE VOICE…

‘Guidance’: not consultation by a public body

 

Funny thing that: there’s me sounding off last week (see eg http://wp.me/p4jaDx-62) about the general need – as opposed to a specific requirement – for the President of the Family Division to consult on new ideas, whether as administrator or as chairman of Family Procedure Rules 2010. When I raise with his office the question of dates for consultation (suggesting that not a lot of time is being left between now and early October 2014 to ‘consult’) I am told (by email dated 26 August 2014):

 

As far as the guidance … goes, I should point out that this is not a consultation by a government department, and indeed, the President is under no obligation to consult at all. However he remains anxious to hear any views on all these important topics and as stated above we are happy to receive responses at any point.

 

The ‘guidance’ relates to ‘transparency’. At short notice Sir James Munby P issued Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014. A further document entitled Consultation: Family Transparency – the next steps (19 August 2014) (consultation due by ‘end of October [2014] at the latest’) has been issued by the Judicial and Tribunals Office (http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ ). The document is unquestionably entitled ‘Consultation’.

 

I yield to none in my admiration for Sir James’s energy and determination. He is in a very powerful position, as the family court hierarchy stands, to change practice. He is no a natural democrat; and I doubt he distinguishes his judicial and his administrative roles clearly or at all. Much of what is going on in and around his office is now administrative and should not be run by just one person.

 

When the Civil Procedure Rules 1998 and the ancillary relief pilot scheme were being introduced the then Lord Chancellor, Lord McKay, took a close interest in them (as he did in the Children Act 1989 ten years earlier). But he knew his limits as an administrator and listened to people (as I know personally from when he asked me to go to see him about the then ancillary relief ‘pilot scheme’ in late 1997). The present Minister of Justice would not understand the need for consultation (unless it was explained to him); but his civil servants, including Sir James, know the difference. Indeed Sir James himself stressed the court’s public authority role as defined by Human Rights Act 1998 s 6(1) (not directly in relation to administrator consultation) in the very recent Q v Q (No 2) [2014] EWFC 31:

 

[46] … The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention….

 

Consultation and the common law

 

Strictly speaking the common law does not require Sir James to consult. As far as the point goes, his office is correct, despite the title of his paper. However the tendency of modern government and administration is to consult whenever reasonably possible. The Court of Appeal have recently considered the point. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 Longmore LJ explained the position as follows:

 

Consultation on what?

[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.

 

In putting forward ‘Guidance’ Sir James is not acting as a judge – judges judge. It is an administrative exercise which he undertakes in an office which – like that of Lord McKay LC – is that of an administrator. He is subject to the constraints of any public body or civil servant and required to act ‘fairly’ (ie not autocratically).

 

‘Fairness in consultation’

 

The role of fairness in consultation is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054. De Smith adopts the terminology of Lord Woolf in R v North & East Devon HA exp Coughlan [1999] EWCA 1871:

 

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).

 

The ‘guidance’ consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I respectfully suggest, reasonably requires that he stand back and let someone else receive the consultation on transparency and let them put forward any legitimate law changes, or guidance, arising from it. The voice of Sir James should please be but one; not the only voice from which the consultees must persuade him of another course.

‘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.

NEAR ANARCHY IN THE FAMILY COURTS

Judge’s low regard for the law

A client (A) asked me today if I could give him certain information so he could manage his own expectations concerning his case. It was a fair question. He wants to release information about a family case he is involved in. He considers he has been unfairly threatened with prosecution by the police because of information provided maliciously (it seems) by the mother of his child. Before I could respond I reflected on the anarchic state of family law as 2014 progresses; and on how difficult it is to advise clearly when the law is held in such low esteem by the judges who should support it.

Prior to the mother’s involvement of the police, in response to a contact application A had filed she was permitted to extend a case management appointment to nearly an hour (he was absent: he lives in Asia) and to file evidence over thirty pages or so (much of it highly critical of A). In all of it there was not a word of the allegations she later made to the police. Was her later contact with the police malicious?

His criminal lawyer failed to obtain permission to release the family court papers; though between the lawyer and the judge they found none of the voluminous law and case work on the subject.

An appeal by A to a Family Division judge has been refused permission, but the judge has agreed for the order not to be drawn up, perhaps with the intention of the judge reviewing his refusal. He will look at a transcript of the short permission hearing. In that hearing:

• He asserted that there is a procedure whereby A’s solicitor should have asked the district judge for further details of her judgement. This is normal practice in the PRFD (it was said). Where information as to this normal practice can be found I have yet to be told.
• The police could have applied to the court for the documents, said the judge. When he was asked by what formal procedure, he moved on quickly.
• His final remark (mentioned also in his short judgement) was to cite a case which supported his refusal of permission; but he will not – or cannot? – provide details of the case.

Near anarchy: uncertainty and misrule

Anarchy is an absence of rules. Near anarchy is some rules but, for the rest, uncertainty (or misrule as it was termed in medieval times). At least with anarchy you know where you are: you’re on your own. With near anarchy, sometimes rules apply, sometimes not. This state of affairs characterises the new family court.

We are told:

• Local practice directions can apply; but presumably – though there is to be a ‘single’ family court – at any time this could change. If practice directions can come in on a whim, perhaps they can disappear or be altered on a whim also.
• Many ‘rules’ now appear in practice directions which emerge without any real democratic accountability, and – like the rules and the practice direction under it for family mediation information and assessment meetings – bear little relation to the statute which put them in place (ie they are probably unlawful)
• Whilst litigants (and their advocates) must tell courts the law on which they rely, some senior family court judges do not, it seems form my example, have to undergo the same discipline.
• Court guidance can be issued at will by judges without any real basis in law or practice (I think hear of documents said to have been ‘illegally’ obtained by one spouse from another: Imerman documents); and parties and their lawyers must follow the guidance regardless of the consequences for them or their clients.

So where does this leave the family lawyer who is asked, entirely understandably, to manage his client’s expectations? I understand and can explain to a client where judicial discretion can be applied. A understands that in the case of the district judge and the judge – who has thus far refused permission have exercised a discretion to refuse. But a judge can only exercise discretion where there is no law, and only when such facts and law which apply to a case have been established; or where the common law or statute sanction an exercise of discretion.

Refusal to release: the Convention balance

In A’s case the district judge did not consider the law. The judge regarded this lack of consideration of the law as a correct approach to the case. He did not consider what the law was (though it was set out for him in a short skeleton argument). If judges refuse to consider and to follow the law; and if in doing so they make up other law (which may or may not exist), we are truly getting to a point of near anarchy in the family court.

Because it is a refusal of permission to appeal (if the judge holds to his view on permission to appeal), the question in A’s case can go no further. One parent – mother or father – can prosecute maliciously (in tortious or criminal law terms) knowing at least that the family court will impede the parent who may have been maligned. As an alleged tax dodger you may or may not get away with it before the family court (an unsatisfactory state of affairs and of uncertainty, in itself); but if a parent may have been maliciously implicated to the police, the Family Court will not help.

How to manage A’s expectations? If the judge will not set out the procedural rules and case law he has cited my hands are tied in terms of my advice. Till the order is sealed – if it ever is – my advice remains: suitably redacted (to exclude the name of the child) release of the papers to the police or in any court proceedings should as a matter of balance between the mother’s Art 8 rights, and the father’s Art 6 and 10 rights, have fallen on the side of A. His application should have been granted. A human rights balance, in the family court’s semi-anarchic state, was not attempted by either judge in the two brief hearings before them. As a matter of law this should have been central to what both judges did.