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.’

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.

Knowing as I do that we are followed by a lot of notables in the UK family law community I wonder what our cousins in England and Wales think of this judgment and what comments they would make on the arguments advanced by counsel and the reasoning employed by the judge, Master Bell.

I certainly wouldn’t have liked to have been acting for the wife on this one as this case was always going to be hard to win. I guess that £10 million can be a shiny shiny and hard to resist going after.Wouldn’t have been cheap to bring to court, and now that wife has lost case, lets hope she has the funds to pay lawyers!!!

Before you all get too excited about this case as reported in the Daily Telegraph I would ask you to hold off from rushing to include this in your skeleton arguments until you see the actual judgment from the Court of Appeal. Hope I am wrong but this seems to me more akin to an upholding judicial discretion type judgment, rather than something that has wide applicability for cases where the judge has not been so bold as to face down mother.

For every judge like HHJ Bond who early on sees the case as it is rather than what he is being told by mum’s lawyers, and sets about facing down an obdurate mother, there are another 50 judges of all levels who will let mother’s behaviour slide, and cajole rather than coerce.

For those out there who have never been a McKenzie friend and might feel constrained by the President Guidance of 14th October 2008 here, have a look at what really happens in court in this interview with a real life McKenzie friend, Shaun O’Connell. Shaun was one of the dads in the seminal Court of Appeal McKenzie friend case  ‘In the matter of the children of Mr O’Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967 that was a crushing defeat for some of the haters in the judiciary and legal profession.

This case and the perfect storm of activity in 2005  by FNF and F4J was instrumental in what became Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005, and brought McKenzie friending out of the dark ages.

Shaun, we salute you!!! You will go down in history with people like Dr Michael Pelling, Bernard Greenwood and Ian Mackay (sadly deceased) who fought for the rights of litigants in person during a hostile and shameful period in our legal history.

http://www.familylawweek.co.uk/site.aspx?i=ed41472

Appellant was a grandmother assisted by Alison Ball QC and Peter Horrocks of 1 Garden Court. Father was represented by Pamela Scriven QC of 1 King’s Bench Walk and Cherie Parnell of East Anglian Chambers. Bench comprised of Lord Hope, Baroness Hale, Lord Collins, Lord Kerr (former LCJ for Northern Ireland)  and Lord Clarke.  Reasons to follow (updated on 19th Nov 2009 with judgment) here here )but background to case at Court of Appeal is here

I notice that the mother was in person, with no mention of her having availed of the assistance of a McKenzie friend. The decision to go all the way to what was formerly the House of Lords in person, but without a McKenzie friend is questionable at best.

Given that at the time of the Court of Appeal hearing the mother supported the father’s application, it may be inferred that she still held that view at the Supreme Court, and perhaps thought that the grandmother’s appeal was unlikely to succeed.   The mother was represented in front of the Magistrates’ but unrepresented at the High Court and at the Court of Appeal. One wonders whether the outcome would have been the same if mother had been represented and supported the father’s position that way? Perhaps the mother couldn’t get public funding? Who knows…

A couple of questions spring to mind; did this mother know she could have had the assistance of a McKenzie friend, and where was the Bar Pro Bono unit? Unless the mother was in the throes of doing a law degree it would be unlikely that of herself she would have been able to muster the legal argument that may have swayed such a venerable court.