Work out which court: spot the differences in procedure…
Rule-makers often make things needlessly difficult for parties to family proceedings. Appeals from decisions in family courts, the different appellate courts involved and the divergent procedures for getting there are an example. First, would be appellants in family cases have the worry of working out which court they must appeal to – High Court family judge or Court of Appeal. Secondly, they must be clear which set of rules – Civil Procedure Rules 1998 (CPR 1998) or Family Procedure Rules 2010 (FPR 2010) – applies to their appeal. (It is true that the first dictates the second.) For parties who are doing their own legal work – that is, litigants in person, who account for up to 40% of appeal cases – just to start an appeal under this separation of courts and their procedures must be a challenge. (Full statutory and case references with some links can be found here https://dbfamilylaw.wordpress.com/2018/11/26/appeals-in-family-proceedings-the-rules-diverge/).
Beyond this there is an increasing divergence of appeals procedures for appeals in the family courts governed by the two sets of procedural rules. It should not have been beyond the wit of the rule-makers to ensure that all family proceedings appeals were governed by the same set of rules, in the Family Court, the Family Division of the High Court and in the Court of Appeal. However, appeals from magistrates and lesser judges in family proceedings go to higher judges, but still in the family courts and appeals from higher family judges go to the Court of Appeal. A person appealing against any magistrate’s or judge’s decision must know to which level of court to appeal since – and this is the main purpose of this article – the first type of appeal proceeds under one set of rules (FPR 2010), and the second under other rules (CPR 1998). Each was drafted in much the same terms originally; but increasingly the framework of the rules for of such appeals is altering away from each other.
Appeals in family proceedings: Court of Appeal and family courts
First, a little history. In 1998 Lord Woolf’s rules committee published a new set of rules for civil proceedings – Civil Procedure Rules 1998 (CPR 1998). These rules were intended to be clearer than the earlier 1965 rules, as this was mostly the case. Until 1998 all family proceedings had been dealt with as civil proceedings under the previous civil proceedings rules as varied by any relevant family proceedings rules. That remained the case for family proceedings after 1998.
Meanwhile in 2000, a new CPR 1998, Pt 52 introduced rules for appeal to the Court of Appeal. As an exception to the general rule – that CPR 1998 could not apply to family proceedings generally – Pt 52 applied to all appeals to the Court of Appeal in family cases. That remains the position with Court of Appeal appeals today.
In April 2011 a new set of family proceedings rules (ie FPR 2010) was introduced for all family proceedings. Family cases had their own set of rules. But these rules were a mixed adaptation of old rules (such as those for financial relief proceedings which had come in with their own style of drafting and tenuous regard for the law in 1996); and of restyling of CPR 1998 (eg for interim applications, evidence and appeals (Part 30 as explained later)). In certain areas there were brand new rules (eg divorce and children law).
FPR 2010 had its own appeals rules within family proceedings, namely Part 30: that is for appeals from a lesser judge to a higher; but then it began increasingly to move away from Pt 52, though within the family courts. Part 30 was originally modelled almost word for word on CPR 1998, Pt 52; and it began to diverge from Pt 52. No longer can an appellant, or their adviser, assume that its parallel is the same as the other. Since 22 April 2014 appeals from many circuit judge and district judge decisions are to a High Court judge.
Three examples of the divergences between Pt 52 and Pt 30 follow.
Appeals practice directions
First, appeals practice directions. Most rules do not stand alone. They are backed by practice directions which are a form of semi-delegated legislation which exist in an ill-defined regulatory no man’s land between rules and guidance. Rules depend on practice directions for their operation, but – especially in family proceedings only – Lady Justice Hale (as she then was) has said they are ‘probably not made under any statute at all’ (though outside family proceedings they must now have the authority of the ‘Lord Chancellor’). In October 2012 the practice direction for civil appeals was amended in its entirety and was replaced with five sets of new practice directions (the first four of which can apply in family proceedings).
The practice direction to Pt 30 remained – and still remains – the same in outline; though it has been redrafted since the provisions in Pt 30 were introduced in April 2014 which enabled lower judge decisions to be appealed against to a higher single judge.
Secondly, with effect from October 2016 the rules in Pt 52 were completely overhauled. Most of Pt 52 remained much the same; but significant provisions changed. And these changes were not necessarily changed in FPR 2010, Pt 30 which, till then, had more or less mirrored Pt 52, Pt 30. For example, the new r 52.3 has deleted the right of an appellant who has been refused permission on paper by a single judge in the Court of Appeal to go back to the court itself and to ask it to reconsider a grant of permission to appeal. Now, if you are refused permission to appeal by the judge who made the original decision and by a Court of Appeal judge on paper, that is an end of your appeal. By contrast appeals to the Family Court can be reconsidered by a judge in the appellate court (as was the old rule in the Court of Appeal).
Family appeals: in private or in public?
A third divergence is that separate rules are to be introduced for the hearing of Family Court appeals. From 10 December 2018, the family judge can order that an appeal hearing is to be in public. Most family proceedings hearings are in private; whereas almost all Court of Appeal appeals (save eg in children cases) are in open court. A new rule – FPR 2010, r 30.12A – is to be added to Pt 30 to enable a judge to say that an appeal should be heard in open court (ie ‘in public’). The present position on open court hearings in family proceedings is not always clear. Different common law principles and court rules (in the case of family proceedings) apply according to whether an appeal is in higher appeal courts in the Family Court under Pt 30.
For appeals which in the family courts under FPR 2010, Pt 30, the judge will expect that, in accordance with the general rule in family proceedings, most hearings will be in private (r 27.10). However, the new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’. The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’.
No more is said by the new rule as to how the new open court powers are to be operated. For example what factors should the judge take into consideration when deciding whether to open the court to the public? There are a number of bases set out in case law (ie common law) which suggest how a judge might decide on making the court open to the public; and there are two statutory lists which develop and categorise the common law privacy exceptions.
As matters stand Family Division judges sometimes cannot decide between themselves as to when case should be in private or in public, and when parties (other than children) should be anonymised in family proceedings. We will have to see how this rule – which must surely operate to mirror common law provisions generally? – beds down; and how it is operated by the High Court judges who sit on these family proceedings appeals.
David Burrows is the author of Children's Views and Evidence, and Privilege, Privacy and Confidentiality in Family Proceedings