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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

30 SEP 2015

Open Justice Principle

David Burrows

Solicitor Advocate


Open Justice Principle
Questions for the family courts

What have the following got to do with the open justice principle ('OJP') and with each other:
Each, I would say, would benefit enormously from adherence by the family courts (ie Family Court and Family Division of the High Court - that is, those courts subject to Family Procedure Rules 2010 (FPR 2010)) to the basic common law principle of OJP (as explained by the Court of Appeal in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420; and in the Supreme Court in, eg, A v British Broadcasting Corporation [2014] UKSC 25). Each, in their different ways, show the haphazard way the family courts operate under its Alsatianised rules.

(For Alsatianisation, see Munby J (as he then was) in Richardson v Richardson [2011] EWCA Civ 79:

'[53] ... The Family Division is part of the High Court. It is not some legal Alsatia where the common law an equity do not apply. The rules of agency apply there as much as elsewhere. But in applying those rules one must have regard to the context ...'
That is, as I understand Sir James, then to mean that common law comes first, not family procedural law (with which the Court of Appeal in Jaffrey v The Society of Lloyds [2007] EWCA Civ 586 would, I suspect, agree). In his modern 'transparency' phase he seems to put FPR 2010 before the common law and thus ghettoise the family courts over which he presides).

OJP - the common law

The common law position is the OJP, which is subject to important exceptions. Such old chestnuts as Scott & Anor v Scott [1913] UKHL 2, [1913] A|C 417; Attorney General v Leveller Magazine Ltd [1979] AC 440 (CPR 1998, r 39.2(4) (below) picks up the misjudged Col B point in AG v Leveller) and Bank Mellat v Her Majesty's Treasury (No 1) [2013] UKSC 38 repeat this again and again for all courts. The need for the OJP can be illustrated by Amendment X, and then illustrated - pour encourager les autres - by the other two cases.

En route to the discussion, it is necessary to set out how the common law, now codifed (it might be said) in Civil Procedure Rules 1998, r 39.2, sees the matter: that all hearings in civil litigation (which, for common law purposes, includes family proceedings) must be in open court (ie 'in public': CPR 1998, r 39.2(1); and see, eg, JX & MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 for infant settlement procedures - parties can always be anonymised), subject to:

(3) A hearing, or any part of it, may be in private if:

(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice.

(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

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How it is done in the family courts

The draft regulations show the insularity of the Family Procedure Rules Commitee - right down to their use of 'diminished' as the epithet chosen to mean 'vulnerable'. (The only use of 'diminished' which immediately comes to mind provides another, entirely different, use of the word, namely by John Donne in his sermon/meditation from the early seventeenth centry:

'No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Manor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde. And therefore never send to know for whom the bell tolls; It tolls for thee.')
The draft confuses two different concepts: (1) listening to children; and (2) provision in court proceedings for parties or witnesses who may be 'diminished' by what is not said. The rules are public, but their operation will not be. They are a muddle (in my opinion), and the judges who operate them, if in this form - or in any other, for that matter - need constant scrutiny, if only for the sake of the unfortunate 'diminished' individuals who are their object.

Mostyn J's judgment in Dl v SL is public, so it can be seen that he mounts a debating point argument with no opposition and with no attempt at judicial impartiality. None of the OJP cases referred to above are cited. Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 is referred to for a proposition which is opposite to that which it establishes (ie Mostyn J is entirely at cross-purposes: para [11]). He misunderstands the point made by the Court of Appeal in JX & MX - that a child settlement approval hearing should be in open court - but the parties (eg the child and the mother) should generally (suggests the Court of Appeal, with Black LJ on the constitution) be anonymised (see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/).

As to HHJ Wildblood in AC v DC, he crushingly (in terms of the wife's case) gave permission to appeal, which she quickly settled. The scheme of the DDJ at FDR was excellent in mediation terms: certain terms were recorded, as agreed (eg as to transfer to W of the former matrimonial home, with a charge back to H; transfer of some shares to H; and that there should be a Matrimonial Causes Act 1973, s 28(1A) cut-off on periodical payments for W). Quantum of periodical payments and Mesher terms for the charge were recorded as being at large for a final hearing. This agreement seems not to have been fully picked up by the un-named [why not named?] district judge who held the final hearing, and it was from his decision - eg, the s 28(1A) cut-off was not accepted by the district judge) that H appealed to HHJ Wildblood.

Neither DJ nor HHJ Wildblood seem to have mentioned:
  • Hyman v Hyman [1929] AC 601 (the court has the final say, as recorded in Edgar v Edgar [1980] 1 WLR 1410, [1981] FLR 19, CA, Matrimonial Causes Act 1973, s 25(1) (as explained in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813); balanced by
  • The autonomy principle in spousal and pre-spousal agreements per Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900.
Most observers allowed into the family courts would say: (1) but there's an agreement; (2) both have had a chance, since the FDR, to take independent advice; and, nearly 100 years on, (3) do we really need Hyman and Matrimonial Causes Act 1973, s 35 (which confirms it) to protect adult parties from themselves? Most observers, who should be allowed in (with parties' names anonymised), would, I suspect, say 'No' to the question at (3).

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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