Consultation on draft amendment rules

From at least last summer, the people who run the family courts have been concerned about the roles of children’s evidence and views in family proceedings; and the participation in proceedings of ‘vulnerable’ individuals (see Report of the Vulnerable Witnesses & Children Working Group, February 2015  and the Group’s earlier ‘interim report’). These are two quite different subjects, but for now are bundled together by rule-makers (Family Procedure Rules Committee (‘FPRC’) in one set of procedural reforms, namely Family Procedure (Amendment No X) Rules 2015. These amendments are in draft and are out for consultation (comments are requested by 25 September 2015).

The plan of FPRC is to amend the original family proceedings rules (ie Family Procedure Rules 2010 (‘FPR 2010’)) by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence. This involves amendment to various aspects of what is already there in FPR 2010 – Part 15 (which deals with protected parties: ie court parties who lack capacity per Mental Capacity Act 2005); Part 16 (children as parties); Parts 22 and 23 (evidence); and perhaps parts 1 and 4 (case management of court proceedings). Instead of amending these parts to incorporate the new ideas, the rule-makers have added everything in one block and, for no explained reason, in the place immediately after Part 3 (which now deals with mediation).

I would like to be able to make the following commentary clear for the averagely intelligent lay-person. Still better, my note should be accessible to a mature child or a notional vulnerable person. These are the people affected by what is proposed and they at least should understand it. I do not wish to patronise any reader – layperson or lawyer alike – so I have included statutory or case law references for anyone who wishes to check any assertion I make.

A real problem for the law commentator and reader alike is that the draft has jumbled up too many ideas in one draft. They have used terms which are not clear in themselves (see ‘interpretation below). They have mixed up in one proposed part of FPR 2010 two quite separate sets of individuals: (1) children: their evidence and views; and (2) vulnerable individuals, as parties and as witnesses. This and the complex terminology used makes commentary difficult. Only a bald summary can be provided here.

General points

Clarity – Courts Act 2003 s 75(5) requires that rules must be ‘both simple and simply expressed’ so that ‘the family justice system is accessible, fair and efficient’. These new rules will be intended for children and vulnerable individuals – obviously. Sometimes these individuals will not be represented. These rules must be understood by them – not just by the judges and lawyers who use them. Whoever is to read them, they must be ‘simply expressed’. Parliament says so. However, in many instances they are not – even for an experienced lawyer.

‘Transparency’ – Many family lawyers – including members of the ‘Transparency Project’, perhaps? – muddle up the legal principle that all court proceedings must be in open court. This is the open justice principle (‘OJP’) and is defined by the common law. Only exceptionally – especially in most children proceedings (see references in Administration of Justice Act 1960 s 12(1)(a)) – are they permitted to be in private. The OJP (euphemistically call ‘transparency’ by family lawyers) is the rule. As I will explain, the draft rules (especially r 3A.7) risk offending against this.

Consultation – ends on 25 September 2015. Consultation principles were considered recently by the Supreme Court in R (Mosley) v London Borough of Haringey [2014] UKSC 56. Any consultation, including the period allowed for it, must be fair (para 24). A ‘fair’ period can be judged by the Government’s own published ‘consultation principles’. The capacity of interest groups to respond should be taken into consideration; and August as an operative period should always be ignored. Here, in effect, 18 days (1 September to 24 September) has been allowed. That is not likely to be regarded as fair, where so many special and protected individuals (e.g. children and vulnerable adults) and aspects of law and procedure are affected. Even if the proposed changes are indeed sufficiently ‘simply expressed’ (per Courts Act 2003 s 75(5)), the limited period for consultation might yet be regarded as unfair and make the amendments – if introduced – unlawful.

Notes on ‘interpretation’ in the draft rules

‘Vulnerable person’ is in the heading to the draft. It is not used in the text of the rules, nor is it defined. It is perhaps implied by the participation or evidence of an individual being ‘likely to be diminished’ (rr 3A.1(1), 3A.4(1) and 3A.5(1)). But precisely what is this intended to mean? By what is evidence or participation intended to be ‘diminished’: their legal representation; the lack of capacity of the person concerned; their fear of their opponent in the proceedings?

Part 3A starts with an ‘interpretation’ rule which leaves out much more than it includes; and what it does include is not made much clearer by its efforts. For example:

• ‘Proceedings where a child is involved’ is not explained (r 3A.1(1): e.g. is it as a witness, as a party, or any proceedings which concern a child; or is it intended to be the same as ‘participation’ as set out in r 3A.2(2)?).
• Participation of a party or their evidence ‘is likely to be diminished’ is stated by rr 3A.1(1), 3A.4(1) and 3A.5(1); but ‘diminished’ by what? This is left open, which – as mentioned above – means the word ‘diminished’ loses any sense.
• ‘Coherence’ of a witness refers to the ‘quality of their evidence’ (r 3A.1(2)(c)) and their answers which ‘can be understood both individually and collectively’: I really cannot understand what that can possibly mean. Does ‘coherence’ need to be defined beyond what is in a dictionary?
• ‘Measures’ which the court can order to deal with evidence from children and the ‘vulnerable’ are set out in r 3A.7(1): e.g. a party or witness can be saved from seeing their opponent; ‘live link’ evidence can be used; that an ‘intermediary’ (whatever that may mean) can provide assistance. This is an area of law which is heavily set about by common law and the OJP. It is not clear to me that this has been properly taken into account by the rule-makers.

Brief introduction to the structure of the rules

The draft rules require the court to consider whether (r 3A.2), and if so how (r 3A.3), a child should ‘participate in proceedings’ (e.g. as a party to proceedings, subject of proceedings, or ‘otherwise affected’: r 3A.2(2)). If a child is to participate, r 3A.3(2) sets out the ‘case management’ directions which the court should consider and what these directions should contain. Rules 3A.4 and 3A.5 consider the ‘participation’ and ‘evidence’ of a party to, or witness in, proceedings (presumably intended to apply to a ‘vulnerable’ individual), and whether this ‘is likely to be diminished’ (but by what? – see above).

The proposed Part 3A sets out case management directions for children and the ‘diminished’: r 3A.6 sets out factors to be considered; and r 3A.7 sets out ‘measures’ for children and parties/witnesses (eg evidence by video link; assistance from an intermediary; and see e.g. Lady Hale in Re A (A Child) [2012] UKSC 60). Rules 3A.8 and 3A.9 set out when the rules apply (‘as soon as possible after the start of proceedings’: r 3A.8(1)); and what an application must include. The court can proceed on its own initiative (r 3A.10). A party applies under FPR 2010 Part 18 (r 3A.9(3)): ; but what does a witness, or child not a party do to activate the rules?

Common law and the open justice principle

As far as I can see, these rules (especially rr 3A.4, 3A.5 and 3A.7) have been drafted without any real concern for their common law context. The common law – from which, for example, the OJP is derived (as explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618 and a number of recent Supreme Court decisions) – is the basis of English law. It can only be changed if Parliament specifically says so and how. A rule is not enough to change the common law.

From cases like Scott v Scott [1913] AC 417 through Attorney General v Leveller Magazine Ltd [1979] AC 440 to A v British Broadcasting Corporation [2014] UKSC 25 (which I have set ou more more fully here), the House of Lords and Supreme Court have explained how important is the OJP, and how it may only be diverged from in exceptional circumstances. Any of the exceptions to the OJP in r 3A.7(1), though perhaps entirely understandable, must be justified. All concerned must understand where they are diverging from the OJP and why. A rule to do this is not enough, unless it is within the rule-makers’ powers; and so far I cannot see that it is.

Rule-makers, clarity and their powers

The powers of the rule makers (the FPRC ) are limited. Operation of their powers must be justified by what Parliament has said they can do (their vires). A number of the existing rules in FPR 2010 are probably outside the powers of the rule-makers (e.g. to say all ‘family proceedings’ should be in private, as does FPR 2010 r 11, is obviously outside the FPRC powers: confirmed by the Court of Appeal in Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261) – but family lawyers generally let the FPRC get away with it.

All of us – lawyer and lay-person alike – are entitled to judge these rules according to their clarity to each of us. If they are not clear, because not ‘simply expressed’, then they are made outside the powers Parliament has given to the rule-makers (ultra vires) and are therefore unlawful.

I sincerely hope a few children or ‘vulnerable’ parties and witnesses (i.e. who may be ‘diminished’ by the family proceedings) will let the rule-makers know how they get on with these draft rules, and with their understanding of them. I entirely accept that there must be a clarity threshold. There must be a level below which a failure to understand in a given individual may be inevitable. Here the group of individuals at whom the reforms are aimed are defined in the heading to the draft amendment. That must surely indicate the threshold at which FPRC must aim?

Whether this note has done anything to illuminate what the rule-makers intend – I can only leave that same group – children and ‘vulnerable’ parties and witnesses – to say. By any standard, I doubt the draft is intra vires Courts Act 2003 s 75(5); and if it is to make sense to children and vulnerable individuals I am sure it must go a good deal further still.

David Burrows, Solicitor Advocate

13 August 2015