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’.

This article is likely to offend most people who read it, and I don’t make apology for that as most people who read this blog are legally minded people including those in the legal profession, judiciary and expert witness pool. It is their Karmic duty to be offended for some of the questionable things they have done in their careers that resulted in a child losing contact with a parent and that parent’s family.

The latest contact denying tactic that seems to be doing the rounds is Post Traumatic Stress Disorder (PTSD). PTSD is increasingly being relied upon as a reason why a parent cannot have contact with their child(ren). It’s turbocharged ‘mothers anxiety’, and can bring the shutters down on contact, or more properly keep the gate that was once ajar closed on contact for good.

Here’s how it works…

Mother’s says she was a victim of domestic violence and doesn’t permit contact, no urgent fact finding is held to protect child’s relationship with father and all contact with child ceases. Many months pass with adjournment after adjournment and judge taking a ‘huff and puff’ approach to coercing mother to permit contact.

Eventually contact starts again regardless if DV proven or unproven.

Mother realises that contact is going to ‘bed’ in and suddenly decides that she may be suffering with PTSD and cant possibly countenance contact until diagnosis and treatment, the latter part of which she cant see happening for an unspecified time. An expert selected by her solicitor and paid for by legal aid agrees with mother in a report, and it all gets kicked into the long grass, or more properly into the abyss. Father doesn’t have the resources to instruct his own expert. Appeal court  would rightly conclude that decision was open to judge on evidence heard

Game over.

Or is it? Let’s rewind a bit…

The corollary of this should surely be that in the absence of the mother engaging in therapeutic treatment aimed at restoring contact the court should consider removing the child from the mother if she is so impaired that she cannot tolerate contact?

If only it worked like that as the hired gun expert can’t agree with that position as he realises that there will be no more referrals from solicitor A who has instructed him or her many times. Or maybe he just doesn’t believe it?

I am sure our readers who work in family law have heard or been involved in an impasse such as this.

A potential solution to this is for the British Psychological Society and other bodies to ensure that a substantial pro bono commitment is part and parcel of membership, and make it accessible to all, including litigants in person?

Remember where you heard it first…

Regular readers will remember the Mexican stand-off I had with Master Redpath a few weeks back.

Was back in front of him today and had a totally different experience, and in the interests of fairness I thought I should tell you about it.

A very endearing barrister came round and spoke with me. No posturing about ‘I can’t talk with you, as you are only a McKenzie friend’. They spoke with me about the case and we reached a level of agreement about how to proceed.

He then spoke with the Master’s clerk and we got in at the end of the callover. And the extremely busy Master allowed two McKenzie friends in and it was all very civil, as it should be.

I don’t want to name the barrister as they may get ribbed for being so civil, but their name has been noted, and next time a client needs a calm, professional counsel, that person’s name will be foremost in my mind.

The sooner counsel ‘court’ professional McKenzie friends the better it will be for their business.

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.’

Gosh

Doesn’t social media move fast!

I had hardly had time to post and Tweet about PTSD and contact when someone emailed me on help@mckenziefriend.com to tell me about a case they were involved in where the mother alleged that she had PTSD and couldn’t countenance contact!

More on that story to come when I have it….

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

By their own account RFFJ NI had a successful meeting with the SDLP at Stormont yesterday. I haven’t seen any press release from the SDLP, setting out their commitments but I may just have missed that.

Other groups such as Families need Fathers and Fathers for Justice in Northern Ireland need to take a leaf out of RFFJ’s book and publicise these meetings on their respective websites ahead of time and blog a report after the meeting. It may also be helpful to make the briefing documents available online so that other supporters can see what research was being relied on.

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

Following on from our post about where McKenzie friends should sit Peter Cherbi has just announced on his blog that for the first time since the seminal judgment in McKenzie-v-McKenzie in 1970, a McKenzie friend has been permitted to assist a litigant in person in a Scottish Court.  Bizarrely however Lord Woolman decreed that the McKenzie friend sit behind the litigant, rather than beside!!!

How embarrassing for the Scottish senior judiciary to fudge this issue, whether by design or otherwise. If by design we have a word for such conduct in Northern Ireland. The word is ‘thran‘!

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.