PART 2 OF THE CHILDREN, SCHOOLS & FAMILIES ACT 2010– THE LORD CHANCELLOR’S CONFIDENCE TRICK

by Dr Michael J.Pelling

0. INTRODUCTION This briefing note examines the newly enacted Part 2 of the Children, Schools & Families Act 2010 (c.26) ["CHSFA"] which originated from Lord Chancellor Mr Jack Straw and the Ministry of Justice and which purports to improve “transparency” or open justice in relation to the reporting of Family proceedings in the courts, particularly proceedings relating to children. It will be shown that it does the very opposite and that in a number of respects the position for open justice is now much worse than under the law the Act will replace. That law is still in force because the CHSFA although enacted is not yet in force: Part 2 comes into force when the Lord Chancellor makes the appropriate order by statutory instrument [s.29(4) of the Act].

1. THE CURRENT LAW For the purpose of the contempt law and reporting restrict-ions on Family proceedings heard in private (as most are) there is a sharp distinction between proceedings wholly or mainly about the upbringing or maintenance of children – principally Children Act 1989, Adoption and Children Act 2002, Child Abduction and Custody Act 1985, and Wardship – and other Family proceedings such as under the Matrimonial Causes Act 1973 (divorce, judicial separation, nullity, and ancillary relief), the Civil Partnership Act 2004, or Part IV Family Law Act 1996 (non-molestation orders & occupation/exclusion orders in relation to residential property as between “associated persons” such as spouses and cohabitants and relatives). The first class will be referred to simply as “child proceedings”.

2. Child Proceedings The current law is that it is a Common Law criminal contempt (declared in s.12(1)(a) Administration of Justice Act 1960) to publish information relating to child proceedings heard in private (i.e. general public not admitted, even if accredited press are). Information means substantive information about the content of the proceedings, such as submissions, evidence, expert reports, and judgment, but case law held that it did not, for contempt purposes, include the mere names of parties, witnesses, or children the subject of the proceedings, their photographs, the fact that a child was the subject of such proceedings, the nature of the dispute in such proceedings, nor the orders of the Court – see for example X v. Dempster [1999] 1FLR 894. These could all be published without contempt. “Publication” is in the wide sense of defamation – to any third party – and includes communications in purely oral form. In April 2009 the Family Proceedings Rules 1991 were amended by SI 2009/857 to generally allow accredited members of the press to attend any Family proceedings heard in private (new Rule 10.28), including child proceedings, but not affecting the law relating to reporting by the press. The same Statutory Instrument also added a new Part XI to the FPR 1991 entitled “Communication of Information: Proceedings Relating to Children”, which relaxed the contempt law for communication of such information at an individual and institutional level, but not in relation to communicat-ion to the general public. Indeed, r.11.2(2) states: “Nothing in this Part permits the communication to the public at large, or any section of the public, of any information relating to the proceedings”. Any relaxation of the contempt law in child proceedings heard in private to allow publication to the public at large would require, it was thought, as a matter of law, primary legislation. Hence the new Act.

3. Additional to the contempt law, s.97(2)-(6) Children Act 1989 created a summary criminal offence of publishing any material to the public or a section of the public intended or likely to identify a child as the subject of child proceedings in the High Court, County Courts, and Magistrates’ Courts [but not the Court of Appeal], and this actually applied whether the proceedings were in private or in open court. In Clayton v. Clayton [2007] 1FLR 11 CA the Court of Appeal held that the s.97 prohibition only applied while the proceedings were continuing – once the Court had reached its final decision and the case was concluded, it would be no offence to identify the child. In particular, in newspaper reports or on the Internet and to the public generally.

4. Other Family Proceedings Contested matrimonial causes are heard in open court and can be freely reported, subject to certain limitations on the content of the reports imposed by the Judicial Proceedings (Regulation of Reports) Act 1926. Proceedings for ancillary relief are normally heard in private and very little can be published because of the rule of law which makes it contempt to publish evidence obtained under compulsion until such evidence is read or referred to in open court. In ancillary relief there is a strict legal duty of full and frank disclosure. But there is no restriction on identification, including of any children of the parties. The same situation applies in civil partnership proceedings. In theory an ancillary relief case could fall within the category of child proceedings if the case happened to be wholly or mainly about child maintenance, but that is extremely rare as the proceedings will almost invariably be wholly or mainly about financial provision for the adult parties. As the CHSFA specifically excludes matrimonial and civil partnership causes and matters from its scope there is no change in the law here and these will not be considered further.

5. Proceedings under Part IV Family Law Act 1996 are usually heard in private but even if children are involved they are not about the upbringing or maintenance of children and there is no application of s.12(1)(a) Administration of Justice Act 1960. However, it would seem possible that if a welfare question about a child arose in such proceedings then s.97(2) Children Act 1989 could apply, because by s.10(1) of that Act the Court could then exercise its Children Act powers even on its own motion, and s.97(2) is worded to include any proceedings in which powers under the Children Act 1989 may be exercised. In general though, in non-molestation order and occupation order disputes between adult parties there is no overlap with child proceedings and s.97 will not apply. In any event, following Clayton v.Clayton supra, s.97 does not apply once the proceedings are concluded. There is therefore generally no legal restriction on publishing information with identification about Part IV Family Law Act 1996 proceedings, and certainly none once the proceedings are concluded. This is confirmed by case law: see Clibbery v. Allan [2002] 1FLR 565 CA where the Court of Appeal held that an aggrieved Ms Clibbery could publish the evidence in the case. The same conclusion applies to any other non-child proceedings.

6. THE NEW LAW The CHSFA repeals s.12(1)(a) Administration of Justice Act 1960 and s.97(2)-(6) Children Act 1989, and ss.11-21 create general restrictions on publication of information relating to Family proceedings, whether child related or not (e.g. proceedings under Part IV Family Law Act 1996 are covered, but matrimonial or civil partnership causes and matters are excluded from the Act – s.11(4)(6)). They apply only to proceedings heard in private and to both ongoing and concluded proceedings [s.11(1)]. A new statutory contempt is created by s.11(2) covering the “publication of information relating to the proceedings” unless (and only if, apart from specific leave granted by a court) any of 3 exceptions applies, in which case there is no contempt. These are [s.11(2)]:-

(a) an authorised publication of the text, or a summary, of the whole or part of an order

made or judgment given by the court in the proceedings (see section 12);

(b) an authorised news publication (see section 13);

(c) authorised by rules of court.

It is important to realise that “information relating to the proceedings” now does include identification information – see the interpretation section 21 and ss.12,13. Information identifying or likely to identify parties, witnesses, or those (typically children) the “subject of the proceedings”, is now included in the statutory contempt, unless of course falling within (a), (b) or (c). It makes no difference whether the proceedings are ongoing or concluded [s.11(1)]. As regards (c) there are no rules of court authorising publication to the public at large, but as seen above, FPR 1991 Part XI authorises various categories of disclosure in child proceedings to individuals or institutions. It would seem likely that similar rules of court for non-child proceedings would be made when Part 2 of the Act comes into force to allow similar disclosure other than to the public at large – but the fact that such rules would be necessary at all demonstrates already that in relation to non-child Family proceedings such as under Part IV Family Law Act 1996 the new Act removes the general freedom to publish which exists under the current law.

7. Orders of the Court CHSFA s.12(1) provides that, in the case of adoption proceedings, and in the case of other Family proceedings where publication of the text or summary of an order contains identification information relating to an individual involved in the proceedings, publication of an order of the Court is only an authorised publication under s.11(2)(a) to the extent that the publication of the text or summary is permitted by the Court.  This is much more restrictive than the current law where there is no restriction on publication of orders in non-child proceedings, and none in child proceedings once the proceedings are concluded (Clayton supra).

8. CHSFA s.13(4)(5) imposes the same restrictions on authorised news publications under s.11(2)(b) in relation to orders of the Court, except that professional witnesses may be identified. The net result is that neither the press nor anyone else can publish adoption orders, or orders in any other Family proceedings containing identifying information (except the press if present in court, but not anyone else, can identify professional witnesses), without leave of the Court, and whether the proceedings are ongoing or concluded. Thus far from increasing transparency the very opposite is achieved and Clayton v. Clayton is statutorily reversed. In a TV broadcast on 27 April 2009 Mr Straw stated he would not reverse Clayton v. Clayton – see link to recording at http://www.parents4protest.co.uk/media/itvthismorning270409.wmv.

9. Judgments of the Court By s.12(2) publication of the text, or a summary, of the whole or part of a judgment given by a Court in Family proceedings, child or non-child, is an authorised publication only to the extent that the publication of the text or summary is permitted by the Court. Similarly by s.13(5) such publication is an authorised news publication only if permitted by the Court. For child proceedings this is exactly the same position as under the current law. For non-child proceedings the opposite of increased transparency is achieved because judgments which currently can be freely published are now made subject to publication by leave of the Court.

10. Other Information The Act does not define “information”, but as that includes identification information it seems clear that the term is to be construed in the widest sense. In particular, the information in child proceedings that can be published without contempt under the current law, such as the nature of the dispute and the identities of parties, child and witnesses, and information generally of any kind in non-child proceedings, now falls within the term and publication will be a contempt under the Act unless falling within one of the exceptions of s.11(2)(a)(b)(c). Concentrating now on publication to the public or a section of the public, where currently (c) is vacuous, it follows that the only publications authorised to be made by someone other than an accredited member of the press present in court, under s.11(2)(a), will be, absent leave of the Court, non-identifying orders of the Court (excluding adoption altogether). In particular that applies to any party in the case.

11. So a party could publish anonymised orders or summaries of orders like, “Mother A obtained a Residence order under the Children Act 1989 in respect of child B at Bow County Court on 1 April 2011″, or “A woman was ousted from her house in Forest Gate E7 by a man in proceedings under Part IV Family Law Act 1996 at Bow County Court on 1 April 2011″ – but absolutely nothing more and they would be in contempt if they identified themselves as a party in the case. Thus for individuals who do not have the privilege of being accredited members of the press, the only information they can publish is worthless triviality. This contrasts with the limited but useful information that can currently be published with identification in child cases, and the freedom to publish any information in the non-child cases. Thus the Act totally destroys the existing publicity available to parties in Family proceedings. The Lord Chancellor has not only statutorily reversed Clayton v. Clayton but also Clibbery v. Allan. It remains to consider what the press and media can publish under s.11(2)(b).

12. Authorised News Publication This is defined in s.13 of the Act and publication is allowed subject to a series of Conditions. Condition 1 [s.13(2)] is: “the information was obtained by an accredited news representative by observing or listening to the proceedings when attending them in exercise of a right conferred on accredited news representatives by rules of court”. It has already been seen that other Conditions in s.13 prohibit publication of adoption orders, identifying orders, and judgments, without leave of the Court. In fact, Condition 3 [s.13(4)] prohibits the publication of any identification information and any sensitive personal information (even without identification) relating to the proceedings, and certain other adoption information, without leave of the Court. “Sensitive personal information” is defined in Schedule 2 to the Act and includes any information provided by a child to a party, witness, or other person, and information relating to anyone’s medical psychological or psychiatric condition or treatment or evaluation, or to health care, treatment or therapy for any person. It should be noted that the accredited news representative cannot obtain the publishable information from a party, only by being present in court.

13. Authorised News Publication – Non-Child Proceedings Here transparency has been grossly decreased since under the current law the press can freely publish any information they can obtain from any source and do not have to be present in court. They do not need leave of the Court to publish anything, for example, about Part IV Family Law Act 1996 proceedings and a party can freely communicate the whole content of the proceedings to the press without the news representative having to sit in court. The press were not in court in Ms Gloria Clibbery’s 1996 Act case but they were at liberty to publish, and did, whatever she chose to communicate to them about the proceedings. Under the new Act Ms Clibbery could not even talk to the press about her case, let alone publish anything herself or through the media. She would not be able to publicise any injustice suffered or any information about the way the 1996 Act and the Court had operated in her case. If the press were in court they could not identify the parties or publish pictures, nor publish the judgment; anonymised orders and evidence would be publishable if no sensitive personal information was included.

14. Authorised News Publication – Child Proceedings Here there has been a very modest increase in transparency in that if present in court the press could publish anonymised oral evidence and advocates’ submissions, provided that no sensitive personal information was included. In practice it is likely that a great deal of important evidence in the case would fall within the scope of sensitive personal information since anything the child had said to anyone would fall in that category. Much, if not all, of any expert reports would fall in the same category, the all-important Cafcass report included. The judgment could not be published, leave of the Court apart. This is bizarre in that the judiciary have historically been much more sympathetic to the idea of publishing anonymised judgments than the evidence in child cases. At the same time there has been a significant decrease in transparency in that Clayton v.Clayton has been reversed and information that could be published without breach of s.12(1)(a) Administration of Justice Act 1960 can now no longer be published.

15. In practice any slight gain in transparency is virtually worthless since the press will not be able or wish to meet the onerous requirement of having to be present in court save in a very few select cases and the media are not generally interested in reporting anonymised cases devoid of human interest. The lack of a right to publish the Court’s reasoned judgment would also be seriously inhibiting.

16. CONCLUSION In relation to non-child Family proceedings the position for open justice is far worse than under the current law, with severe new restrictions imposed. In relation to child proceedings there are new restrictions but also a modest gain for the press only, which in practice will prove largely worthless as the press will rarely take it up. For other than accredited press, in particular parties, the position is much worse and the new law will reduce them to silence in both categories of Family proceedings. The Lord Chancellor’s Act is a massive confidence trick.

17. Example 1 A woman is ousted from the home she owns by her non-owning cohabitant, under an ex parte Court order founded on perjured evidence, leaving the children with him in the house. She fails to successfully set the order aside on the return date, due to lack of time to prepare and lack of resources as she is not eligible for legal aid. The judge is naive and biased and unable to distinguish fact from fiction.  The case, under s.36 Family Law Act 1996, is heard in chambers and although the woman asks press reporters to attend, none do. She is very aggrieved at the injustice suffered and the way the legal system and court has worked against her. She wishes to publicise what she has suffered and write articles about reforming the law, based on her own experience. Under the current law she can write about and publish any material from the proceedings, including the evidence and judgment and orders, with full identification. She can set up a website for this. Or she can speak to the press and the media can use whatever information she gives them, and material from the proceedings, and publish in print or in a broadcast any of it with full identification. Under the new Act, however, she cannot publish anything at all to the public at large, except the bare anonymised ouster order in a way not referable to herself. She may be able to talk to individual members of the press (if rules of court were made permitting that) but they cannot publish anything in the media about her case because none of them were present in court. Thus so far as publicising injustice is concerned, she is reduced to silence.

18. Example 2 In care proceedings heard in private under the public law sections of the Children Act 1989 a child is wrongfully removed from his parents by the local authority on the flimsiest of evidence and in reality to meet adoption targets laid down by the government of the day. In due course the Court makes a care order, the child is put up for adoption, and the parents lose their child for ever. Under the current law the parents could at least identify themselves and children (once the care proceedings are concluded) and complain publicly of injustice suffered, within the limited scope of publication that does not occasion a s.12(1)(a) Administration of Justice Act 1960 contempt. Under the new Act however, the parents could not identify themselves or publish anything at all other than a pointless anonymised care order not referable to themselves. If they spoke to the press then the media would not be able to publish anything more either. If the press were in court then the anonymised order could be published but not the judgment; in the nature of things much in care proceedings hinges on expert reports and the child’s own account of events – but this will nearly all be sensitive personal information and as such not publishable; since much of the crucial evidence would not be publishable and since the judgment of the Court giving its verdict on the evidence would not be publishable (sans leave), it is hard to see that the media would have a publishable story or stamina to sit through the proceedings.

19. THE PRIVILEGED PRESS It used to be thought unwise to have legislation referring to or singling out or defining the press, the danger being that this would be the first step on the road to legislation regulating the press and limiting freedom of speech, so best avoided in a free and democratic society. S.21 of the Act defines:-

“accredited news representative”, in relation to any proceedings, means a representative of one or more news organisations who is a member of a class of representatives of news organisations on which rules of court confer a right to attend the proceedings;

– hence the State will now decide via a Rules Committee what news organisations will have the privilege of being able to send which class of representatives to observe and report on Family proceedings heard in private. Coupled with s.13 of the Act defining authorised news publications (Condition 1 being actual press attendance at court), this conveniently prevents media reporting by the time honoured method of gathering information from the parties and witnesses and lawyers themselves, and greatly limits the likelihood of anyone being present in court who has the right to report on a case.

20. Further, it puts the press in the invidious position of being a censor of what the public shall know about Family proceedings in the courts. It is said that the press are the eyes and ears of the public, but if they are privileged to be the only eyes and ears and no one else is allowed to observe and publish for themselves if they can find an audience, then the press become the arbiters of what the public shall be entitled to know, which is simply a form of censorship. I do not want the press deciding what I shall be allowed to know about court proceedings heard in private anymore than I want the government or the judiciary to decide that. If accredited press who happen to be in court can publish, then I fail to see the logic of denying the same right to the parties, who will have greater knowledge of the whole case and sharper motivation from what they have gone through at the hands of our laws and legal system.

21. Or rather I do see the logic and it is again the logic of the confidence trick – the Lord Chancellor can pretend he has opened up the courts in Family proceedings heard in private and show a form of transparency while denying any real substance to it, conveniently suppressing the voices of those with the greatest reason to speak out.

© Dr Michael J.Pelling    12 April 2010

Sorry for the hiatus, but was on paternity leave after the wonderful Mrs McKenzie produced yet another beautiful baby McKenzie. I have been doting on my son, as new father’s should do.

I did keep one case in my list though; a Leave to Remove case at Circuit level in England. How I wish I hadn’t as I am thoroughly ashamed of what currently passes as binding precedent in the area of International Relocation.

Payne-v-Payne [2001] EWCA Civ 166 is supposedly the leading authority, and for those of you not familiar with the area you should read the case here. The latest case of note is Re D (Children) [2010] EWCA Civ 50 which was an unsuccessful permission to appeal hearing by a litigant in person father. There is a transcript of the judgement and some comment on the Family Law Week site here.The site contains the essential links, including an interesting article by Clare Renton here.

Case was listed for 2 full days and the father had to sit and listen to 2 days of evidence from mother and stepfather, who had already moved out to Australia (stepfather not mother and stepfather). The child was 8 rising 9 and had told CAFCASS on the six occasions she was spoken to by CAFCASS that she wanted to live with her dad. CAFCASS noted that she was bright and articulate.

Father of course was a litigant in person and I was granted a Right of Audience for the final hearing. Counsel was a male barrister who was dignified, knowledgeable and courteous. As seems to be the norm in England, there was no solicitor in attendance.

Leave to remove was granted, despite father having what I and others viewed to be a winnable case.

I can’t say much more as the case is soon to darken the doors of the Court of Appeal, and the N161 is being worked on at this moment.

I hope that the comments of Wall LJ who is now the President of the Family Division still stand where he said that:-

33…There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.

34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard. The question, to my mind, is twofold: (1) has the time come to reconsider Payne v Payne; and (2) is this the right case? I propose to concentrate on the latter question, since in my judgment both have to answer “yes” if permission to appeal on this ground is to be granted.

I note with healthy scepticism that his Lordship did not answer the question posed in the first limb of his own test.  It does not follow from his comments that the now President supports a review of Payne, and even if he does he will likely be opposed by some other senior jurists as well as those groups with an ideological and vested interest, who are well resourced when it come to commissioning and producing ‘research’.

Who needs the final series of Lost when we have Lord Hamilton to keep us on the edge of our seats, not knowing what’s coming next?

First it was that McKenzie friends should sit behind and not beside the litigant in person…

In preparation for taking the short journey by ferry from Belfast to Stranraer to McKenzie friend, everyone in our office practised being ‘back seat drivers’ . If we had’ve continued with such legal athletics we would likely have ended up with neck strains, arms like Tyson and calf muscles like bison. Have you ever tried to lean forward holding 500 pages in a lever arch file? One of our guys suggested a fitness test should be compulsory if planning to work in Scotland. How we laughed!

Not content with the Herod-esque attempt to kill McKenzie friending in Scotland in its infancy, the legal elite in the person of Lord Hamilton decided that if they couldn’t stop McKenzie friending totally, they would discourage people from assisting personal litigants by making it law that McKenzie friends can’t receive payment for their services in Scotland.

Worryingly for those interested in true access to justice the restriction at 5 (iii) should mean that no-one can receive payment for McKenzie friending in Scotland…and I mean no-one. That would include employees of any of the many excellent Scottish groups that potentially provide services to litigants in person such as the CAB, as I fail to see how an employee of one of these organisations is exempt from 5 (iii)?

The no payment angle was part of Ian Hanger QC’s submission to the Committee, and I am sure the committee were delighted to see such a notable as the original McKenzie friend say ‘HE’S LAY – SO YOU CAN’T PAY!….

‘HURRAH!!’ must have come the paternal and protectionist noises from the massed ranks of the legal profession and their brother and sister judges. The beginning of the end for some of them had been postponed, and they had just been handed what they thought was the stake that would spear the evolutionary product of McKenzie friends -  the big bad LAY ADVOCATE – the previously unstoppable walking talking action man and woman with moving eyes and mouth.

If this ridiculous restriction on access to justice is allowed to stand in Scotland it will leave only the independently wealthy, retirees, dole-ites and students skiving off uni as potential McKenzie friends. Just as the establishment wants it – an uneducated or transient opposition, unlikely to ever get enough experience to have a strategic influence on the law. It will also mean that our trips to Stranraer will be for pleasure only.

A begrudging, bedraggled vested interest attempt at legal drafting? Prospect of being passed into law with 5 (iii) in its current form? In the negative integers I would say.

Perhaps Lord Hamilton might be assisted by what another extremely highly respected family judge (Mr Justice Munby) said at para. 54 of In the Matter of N (A Child) [2009] EWHC 2096 (Fam)

‘Dr Pelling may be unqualified but he is plainly highly knowledgeable and experienced in such matters and he is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases.’

Had the old Mexican stand-off with Master Redpath yesterday (Thursday), who was sitting in room 2.21 at the High Court in Belfast.

His list had our client, who was a litigant in person listed for 9.30 with the rest of the mentions at call over. The Master and his office were well aware that I was there to assist my client as the client could not be there due to being out of the jurisdiction. The other side knew this as well.

We were never spoken to until after all the vocational lawyers (solicitors and counsel) had left, and then only by the Master’s clerk who came out asking was there anyone there for Mr X. We said we were there for Mr X and were informed that the matter was adjourned to the 25th February!! I asked whether costs were awarded and the clerk said they weren’t. At least that was something. That was at around 11.30, meaning we waited for over two full hours to hear that, and not once did anyone come out for us.

I accept that a litigant in person should not be in chambers to listen to everyone else’s business, and I also accept that taking the litigant in person in first would only add to the costs of the multitude of other clients.

Why not have a list for litigants in person that actually says the time they will get their chance to go in and see the judge or master? If the list had’ve said Mr and Mrs X at 1130 we would not have turned up at 9.30. Same goes if one of the parties is represented and one is a litigant in person.

You guys and girls in England and Wales will say that court attendances are timed. I know that, as we do a lot of work there. Hearings are rarely timed in family cases in Northern Ireland, meaning that people are turning up at court on time and because of the lawyers jostling for position, and the courts lack of concern about a personal litigant, personal litigants and their McKenzie friends are kicking their heels for hours. Personal litigants are losing money from lost hours at work and having to pay their McKenzie friends.

Who would be a personal litigant! More and more people it would seem…

Just thought I would share the following letter with our readers that was sent to both Lady Silvia Hermon MP and Nigel Dodds MP seeking clarification on the law on Northern Ireland in relation to ‘communications’ of documents and other information on Children Order and Matrimonial Causes Order cases.

From: John Junk [mailto:belfast@familycourtsupport.co.uk]
Sent: 22 January 2010 14:59
To: Lady Sylvia Hermon MP for North Down
Cc: ‘Nigel Dodds’
Subject: Family Court ‘communications’ Northern Ireland

Dear Lady Sylvia

Thank you for seeing both myself and your constituent at your Bangor constituency office on Friday 15th January 2010.

You mentioned that you would consider seeking clarification on a number of matters raised during that meeting by way of Parliamentary questions. I suggested that a more expedited way to deal with the matter would be to write to the Head of the Family Division in Northern Ireland Mr Justice Weir, and to copy Sir Declan Morgan, the Lord Chief Justice in to the correspondence as an information addressee. Regardless of which method you chose to staff this matter, I thought it might be helpful for you if I were to formalise the issues I raised with you around ‘communication’ of documents under the Children (NI) Order 1995 and the Matrimonial Causes (Northern Ireland) Order 1978.

Firstly I made the point that I was unsure whether a Member of Parliament in Northern Ireland (and their staff?) required leave to see any documents from either a current or historical Children Order or Matrimonial Causes case. I believe that both yourself and your staff would be aided in your work if this matter was clarified and communicated to you by either the Northern Ireland Court Service or from the senior judiciary. A similar issue arose today when I was called to the office of Nigel Dodds MP to speak to a constituent of his who had attended at his office with a live Children Order matter, currently being heard by District Judge Alcorn at Antrim. I advised Mr Dodds’ office and the constituent that as I had not been granted leave to see the papers I felt unable to assist, and cautioned them on what I believed the law to be on communication. I have coped Mr Dodds’ office into this email.

Secondly, I pointed out that as a lay adviser and McKenzie friend who assists in divorce, ancillary relief and private law matters under the 1978 and 1995 Orders, it is my experience that unlike England and Wales, there is no formal direction (for from example the Family Proceeding Rules Committee) that states that litigants in person do not require leave to show papers to their McKenzie friends and lay advisers. I cannot speak for others in the lay advice sector such as Women’s Aid or the Citizen Advice Bureau, but I can say with confidence that there either is no accepted procedure for lay advisers seeing documents in cases under either the 1978 or 1995 Orders, or alternatively if any global guidance does exist it is not being followed throughout the court system in Northern Ireland. In support of this assertion, and by way of example I will set out a number of situations I have experienced in local courts.

On one occasion I had to give an oral undertaking under oath in the High Court in front of Mr Justice McLaughlin to be granted leave to see papers; whilst on another occasion I had to be given leave to see case papers by a Master that I had already seen; and had admitted to having seen. I have had to apply for, and been given leave to see papers by a range of magistrates after the court made the issue justiciable, by the magistrate raising the matter of their own motion. On numerous other occasions jurists have made no issue about my seeing the papers, and leave was neither sought nor given, and I was granted a discretionary right of audience to advocate my client’s case. I count Mr Justice Weir and the current Lord Chief Justice in the latter category.

I feel that the position in Northern Ireland is unsatisfactory in that litigants in person are unnecessarily being prevented from obtaining assistance as urgently as they require it. On a personal level I am potentially placing myself in an contemptuous position as the law stands in Northern Ireland by seeing papers without leave being granted. It is impractical to expect anyone to assist in a case if they cannot see the papers at the earliest possible opportunity, normally when a client attends a lay adviser.

This position is to be contrasted with the position in England and Wales where Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005, and subsequent primary and secondary legislation applies, sanctioning McKenzie friends and lay advisors to see the entirety of the papers without seeking leave.

Some authoritative interim guidance setting out the position in Northern Ireland would be helpful until such times as the matter can be considered by whichever legislature ends up dealing with the substantive issue.

Yours sincerely
John Junk
For www.familycourtsupport.co.uk

Having taken some time out to concentrate on political developments in Northern Ireland, most of our original readers will be glad to hear that I am going back to my specialist subject, family law reform. Of course I would like our new readers to stay, but unless the issues I normally blog on affect them or their family or friends they have my permission to blog off!

On Friday past I was with a politician whose name has been mooted as a potential new Minister of Justice in Northern Ireland. To comply with the draconian laws governing communication of family court cases in Northern Ireland, I do not feel comfortable naming them.  Of course it goes without saying that I am also potentially in contempt for being in receipt of such communications without leave; as is my client for disclosing such information in his legitimate quest for assistance.

The law on communicating and being in receipt of documents from the family court is much more realistic in England and Wales and the anachronistic position in Northern Ireland is apparent when one contrasts my personal liability during two similar cases on the same day, in two different jurisdictions within the UK.

Imagine if you will I am assisting a client in England and Wales in the morning under the Children Act 1989. I need no permission from the court to see any documents in the case due to Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005 and subsequent primary and secondary legislation.

However, when I fly back to Belfast in the afternoon for a Contact application under the virtually identical Children (NI) Order 1995 I am put through the mill, having to go into the witness box to give a verbal undertaking not to disclose any information I glean in court, and then having to be given leave by the jurist to see the papers, that I may or may not have already seen. How does the court in Northern Ireland expect me to have gotten this far with the client without seeing the papers!!!

This charade is similar to the ‘Silent Movie McKenzie Friend Game’ whereby it is ok for me to whisper what to say into a litigant in persons ear and for him to repeat it, but I am not allowed to address the court on his or her behalf. This certainly helps to speed things up doesn’t it Mr Magill and Mr Alcorn?

Currently these matters are within the competence of the Westminster parliament, but if and when Policing and Justice is devolved to the Northern Ireland Assembly such matters will be under the purview of local politicians.

I can’t wait….

I am sure there are vocational lawyers out there who will be spitting feathers at the mere suggestion of doing a divorce without a lawyer, but don’t shoot the messenger as it is one of your own who has written this book! John Bolch is a solicitor with over 25 years experience specialising in divorce and family matters. He is a member of Resolution (formerly the Solicitors Family Law Association), and is the author of Family Lore, blog, purportedly the first family law blog in the UK.

Here at Family Court Support we take it as read that divorce, ancillary relief, residence and contact matters are done without a vocational lawyer, as the thought of handing over £100+ per hour to a solicitor (plus uplift for Care and Control and VAT of course), and then paying counsel to do the real work at hearing while said solicitor Tweets in the cheap seats, doesn’t make sense to us.

John Bolch is careful to draw a line in the sand between a truly uncontested divorce, and one that starts off all sweetness and light but ends up kind of mental, with everyone hating each other and blaspheming through their veneered teeth about what a skank the other person was. His standard advice then is to get legal advice if things get contested.

Of course that is not necessarily the same as walking down to your local High Street and seeing a solicitor who helped you with that compo claim a few years back, or who conveyed your house purchase back in the 90’s.

If you choose to eschew your right to conduct your own litigation or represent yourself, an alternative approach if the litigation has already started is to look to see whether you can find a barrister who you can instruct by way of Direct Access. Or you could try to get a specialist Family Law solicitor. Piece of advice though, try and find one with a decent law degree, and not some BA who has done a conversion course. Have a look at their website or headed paper for the qualifications as I have a theory that most family lawyers haven’t got a great degree classification to start with, but it is axiomatic that a law degree is more relevant to the situation than a degree based on writing about Shakespeare. Not wishing to be snobby here but writing in a legal academic style is miles harder than doing an essay for an English degree.

I read this book from cover to cover (it has some excellent Appendices of court forms and sample affidavits etc ) and like the cut of it’s gib enough that I have sold out to the capitalist ideal listed it as a recommended book on our website at Family Court Support. It is written in a very easy to understand  Plain English style, has a glossary at the end, and is very current being published August 2009.

If the opportunity arose I would have little hesitation in recommending it to our clients, but by the time they arrive at our oasis of calm they are normally passed the ‘let’s be amicable’ stage, and are more likely to Google ‘Voodoo Dolls’ and the long tail ‘Lithuanian Hitman who offers Die Now Pay Later’  rather than giving an inch or compromising. Our clients normally arrive with a monster solicitors bill in tow, usually with two columns, one labelled ‘Professional Fees’ and the other asking for £10,000’s without a list of dates or times, or anything approaching an account statement. Thankfully a double helping of Cook on Costs soon brings the miscreant solicitor back down to earth with a bump.

Even though I might get a few coppers from Amazon if someone buys the book through our link I do genuinely recommend the book as it takes the very wise position of suggesting that the starting point for matters concerning the children should be Shared Residence. Some good tips in it as well but you will need to buy the book to find those out!

Some things that I would like added are a companion website for all the useful links plus footnotes in support of propositions made in the book, for example the change of the CSA formula in 2011 and the ‘remarriage rule’. That might make it more of a legal academic text book and I would understand if John felt that this was taking the book away from first principles.

Interesting piece in the Guardian about the alleged demise of court reporting generally given the collapse of the print media industry, and how a dearth of reporters reporting might militate against ‘Open Justice’. I would add that the prospect of having to pay for content might negatively affect reports reaching the general public.

Such is our concern at Family Court Support we are actively considering paying journos to attend family court hearings. More to follow on that one anon., and any journos out there who want to offer their services commercially feel free to email us at help@mckenziefriend.com

Potential solution…send in the bloggers …send in the journalism students….and the law students, and the media students… and the in-house reporters. Oh, and let the public in if they want to come in, like they already do in Scotland where private law child cases under the Children (Scotland) Act 1995 are heard in public, have public judgments given, and don’t require anonymisation or impose reporting restrictions.

The state should stop supporting  and propagating  the falsehood that the current exclusionary system is about protecting children, as it’s a complete canard. In a way it is akin to senior judges, their family members and/or acquaintances being Lloyd’s ‘Names’ while their brother lawyers supposedly close the ‘floodgates’ in ‘nervous shock’ cases. Specious, fooling only the foolish and those who don’t have scepticism as a shield.

Relax the rules to ensure that come what may, court reporting continues, even if some of what is written is raw and difficult to digest at first and seems far from impartial. And while we are at it, make the court tapes available to interested parties for all hearings. Why not?  If there is nothing to hide what is the problem in doing that?

The lamentable reality is that individual judges, expert witnesses, lawyers, CAFCASS and Social Services staff have something to hide as some are unconsciously incompetent, and others who may or may not suffer under a similar disability scrum behind them. Some individuals are on such a power trip, especially judges, expert witnesses, CAFCASS and Social Workers, probably because they wield discretionary power over parents and children, and don’t brook criticism well.  Allowing people to complain about the other side’s lawyers would help, as would complaints being adjudicated on by anyone apart from other vocational lawyers. Having said that, the conduct of some vocational lawyers is merely a boil that needs lancing on a terminally ill patient.

As someone who has the advantage of assisting throughout England and Wales and Northern Ireland I feel in an almost unique position to announce that the extremely dated Children Act (Children Order in  NI) is at the heart of the problems around Contact and Residence, and needs root and branch reform to take account of the changed societal landscape. Grandparents needs rights, non resident parents need rights instead of higher and smaller hoops to secure a relationship with their children. Resident parents need to be able to petition the court for contact orders to be adhered to by the non resident parent.  Allegation’s of themselves shouldn’t stop the contact clock. Stop allowing British and Northern Irish children to be taken away from their family, friends and schools when one of their paretns wants to leave the jurisdiction.  Let one of their parents go if they wish, but let the children stay in the UK. A Rebuttable presumption of shared residence.  Fact finding hearings to happen in all cases within 8 weeks of proceedings commencing. Perjury needs to be a strict liability offence in family courts, not virtually ignored as at present.The judge should see the litigants in the presence of their lawyers and give them a stern agreed direction about perjury. I am sure you can add your own suggestions as these are only from our cases in the last few weeks.

Something radical has to be done quickly before more children lose a relationship with their families. and any attempt at incremental reform of the Children Act and its progeny is going to leave the system open to stinging criticism, likely demoralise those involved and needlessly drain the public purse.

Dr Michael Pelling has given the following analysis of the effect of the Children Schools and Families Bill on existing “openness” precedents Clayton v.Clayton and Clibbery v.Allan and shows that far from increasing transparency in Family proceedings, the Bill in many respects does the exact opposite.

Why the Children Schools & Families Bill implies a statutory reversal of Clayton v. Clayton [2007] 1FLR 11 CA

1.  The current law is that it is a Common Law contempt (declared in s.12(1)(a) AJA 1960) to publish information relating to child proceedings heard in private (i.e. general public not admitted, even if accredited press are) such as under the Children Act 1989 or in wardship. Information means substantive information about the content of the proceedings, such as submissions, evidence, and judgment, but case law held that it did not, for contempt purposes, include the mere names of parties, witnesses, or children the subject of the proceedings – see X v.Dempster [1999] 1FLR 894. These could be published without contempt. However, s.97(2)-(6) Children Act 1989 created a summary criminal offence of publishing information to the public or a section of the public identifying or likely to identify a child as the subject of proceedings under the Children Act, and this actually applied whether the proceedings were in private or in open court. Clayton v.Clayton CA held that the s.97 prohibition only applied while the proceedings were continuing – once the Court had reached its final decision and the case was concluded, it would be no offence to identify the child. In particular in newspaper reports and to the public generally.

2.  The Bill repeals s.12(1)(a) AJA 1960 and s.97(2)-(6) Children Act 1989, and ss.32-41 create general restrictions on publication of information relating to Family proceedings, whether child related or not (e.g. proceedings under Part IV Family Law Act 1996 are covered, but not matrimonial causes). They apply only to proceedings heard in private (general public not admitted) and to both ongoing and concluded proceedings [s.32(1)]. A new statutory contempt is created by s.32(2) covering the “publication of information relating to the proceedings” unless (and only if) any of 3 exceptions applies, in which case there is no contempt. These are:-

(a) an authorised publication of the text, or a summary, of the whole or part of an order made or judgment given by the court in the proceedings;

(b) an authorised news publication;

(c) authorised by rules of court.

It is important to realise that “information relating to the proceedings” now DOES include identification information – see the interpretation section 41. Information identifying or likely to identify parties, witnesses [except professional witnesses], or those (typically children) the “subject of the proceedings”, is now included in the statutory contempt, unless of course falling within (a), (b) or (c). Further, it makes no difference whether the proceedings are ongoing or concluded.

3.  It follows that we have a reversal of Clayton v.Clayton in the case of Children Act proceedings heard in private (as they almost inevitably are) UNLESS publication of the name of the child, or information likely to identify him, to the public or a section of the public, after the proceedings are concluded falls within one of the exceptions (a), (b) or (c) set out in s.32(2).

4.  One can easily deal with (c) – there are no rules of court authorising publication to the public at large.

5.  The definition of (b) is found in s.34.  A publication of information is an authorised news publication if a series of conditions are met. Condition 1 [s.34(2)] is that the information was obtained by an accredited news representative by observing or listening to the proceedings when attending court in the exercise of a right conferred on such representatives to attend. But Condition 3 [s.34(4)] is that the information is not identification information relating to an individual involved in or referred to in the proceedings (subject to power of court to allow publication, but we are concerned with the general case and not with the special situation where the court makes specific orders or injunctions enlarging or restricting the scope of what is permitted publication). It follows that exception (b) is of no avail.

6.  The definition of (a) is found in s.33. Judgments need permission of the court to be published, but unless the court expressly prohibits it, there is (excluding Adoption proceedings) no restriction on publishing the text or summary of the whole or part of an order made in the proceedings. It follows that exception (a) will SOMETIMES permit the identification of a child in the proceedings – provided the text of a court order names or identifies the child. This seems to point up some very bad drafting in the Bill, because it cannot be reasonable that the right to publish the names of the child and parents should depend arbitrarily on whether or not they happened to be expressly named in an order of the court. In my experience it is equally common for the names to occur in the order as not – it is easy to draft a court order either way. For example:-

(i)  The Applicant Father’s application for a Residence order is dismissed.

OR

(ii)  The Applicant Charles John Adams’s application for a Residence order in relation to Nicholas Joseph Adams (born 22 March 2001) is hereby dismissed.

7.  However, you can be sure that once the Family law judiciary cotton on to the new significance of whether or not names expressly occur in the texts of the orders they make, they will rapidly opt for modes of expression which cut out the names. It seems fair to say that the Bill does imply a statutory reversal of Clayton v. Clayton CA by virtue of its clauses 32(1), 32(2), 33, 34(4), 41 all read together.

8. But the matter goes further: because it is clear from the above analysis that, subject to the contingency of an order naming names, it will now be a contempt of court to name parties, witnesses (excluding experts), and individuals the subject of or involved in the proceedings, in most kinds of Family proceedings, and not only child proceedings, and a fortiori to disclose substantive content of the proceedings. Thus proceedings under Part IV Family Law Act 1996 (for exclusion orders or non-molestation injunctions etc: almost invariably heard in private) will be included. This means in particular that we also have a statutory reversal of Clibbery v. Allan [2002] 1FLR 565 CA, and not only to the extent of names but also now to cover evidence such as the Court of Appeal held Ms Clibbery was entitled to publish. The right of a party to publish information about his own case, in Family proceedings generally, not just child cases, is now severely restricted by the Bill, far more than under the existing law.

9. In a TV broadcast on 27 April 2009 Mr Straw stated he would not reverse Clayton v. Clayton (link to recording here) from which it now appears he lied or else he has been bamboozled by the civil servants and the ghastly convolutions of his own legislation.

10.  Frankly, this legislation is just rubbish – far from opening up the courts and creating “transparency” it’s really made things worse. As Frances Gibb, Times legal editor, correctly said, “A long, long step backwards”.

Michael J.Pelling, Dr.

29 November 2009

The Indy has a short note titled ‘Cuts warning over family courts’, about the FLBA Annual Conference held in Bath yesterday with Mr Justice Coleridge supposedly linking delay in family cases with increased media access.

The story doesn’t really make any sense until you read it in conjunction with this post by Lucy Reed, family law barrister and blawger (sic) writing in her Pink Tape blog. Lucy reveals that part of the conference was in panel discussion format, entitled ‘Publicity in Family Proceedings’ , and lasted all of 60 minutes.

Don’t really feel that I can comment much more without seeing the transcript of the discussion, but suffice to say that I feel that what Mr Justice Coleridge seems to have said is most likely a supportive salvo from SOME of the judiciary into the debate around the Children, Schools and Families Bill Part 2 — Family proceedings. This Bill, under the pretence of more transparent access to courts statutorily reverses Clayton-v-Clayton, despite Jack Straw saying on This Morning on the 27th April 2009 that Clayton wouldn’t be reversed.  There is a rather long download video here and the action re Clayton-v-Clayton starts at 8:45.

If you have the time, then listen to the whole piece, as Straw not only speaks about Clayton but about an 11 year old child being forced by the Family Court to see her father. This starts at 10:25. Very telling in my view as Straw seems to suggest that given his own parent’s divorce he has sympathy with the child. He then goes on to say that family court decisions are binary and seems to have forgotten the Shared Residence option!

How I would have loved to have seen Dr Pelling on that show with Straw, but I doubt if Straw’s people would countenance that then, or now.