Bloomsbury Family Law Briefing: March Teaser

Cases of the month

Re A (Children) [2020] EWCA Civ 448 (25 March 2020) – Where there had been serious injuries to a child, and a judgment was sought by the police, Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 was still the lead case (and see FPR 2010, r 12.75 and CA 1989, s 98(2)).

Al M (Publication) [2020] EWHC 122 (Fam) (27 January 2020, delayed pending father’s appeal) – Seminal judgement from Sir Andrew McFarlane P concerning why, in appropriate cases, a children judgment should be published and parties (and children) named; and Al M (Children) [2020] EWCA Civ 283 (28 February 2020) – Human rights balance was correctly struck by Sir Andrew McFarlane P. The human rights balancing exercise is akin to an exercise of judicial discretion and therefore very difficult to challenge on appeal.

A Local Authority v AG [2020] EWFC 18 (16 March 2020), Mostyn J – Diplomatic immunity of the father made claim for a CA 1989, Pt 4 order for three children, impossible; but suggestion from the judge as to how this might be remedied.

Cobussen Principal Investment Holdings Ltd v Akbar [2020] EWHC 476 (QB) (2 March 2020), Edis J – a statement is made – eg by a parties’ solicitor – it must state the source of information and why the source is believed.

Negahbani v Sarwar [2020] EWHC 712 (Fam) (26 March 2020), Lieven J – S had failed (till too late: see ‘postscript’ to the judgment) to seek relief from sanctions under FPR 2010, r 4.6; and see application of Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906, [2014] 1 WLR 3926.

Pharmagona Ltd v Taheri anor [2020] EWHC 312 (QB), [2020] WLR(D) 129, 17 February 2020 Nicol J – The test for publication of confidential material is the more stringent Human Rights Act 1998, s 12 test. Injunction to prevent passing on of material; but not if it was asked for by relevant public authorities who might want to consider prosecution of P.

Family law and guidance at a time of Corvid-19

With the demands of court process created by the coronavirus there is a lot of talk of remote court hearings and of the adaption of the system we have known to a new world of IT contact between judges and magistrates, with parties, their lawyers (if any) and witnesses. The issue in the article is to ask some basic questions on fairness in a remote and IT world.

The starting point for any assessment of remote hearings must be the right of any party to a fair trial. Courts may not act in a way ‘which is incompatible with a European Convention right’ (Human Rights Act 1998, s 6(1)). The right in play is Art 6.1:

‘Right to a fair trial

1 In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly….

Basic pre-requisites of a fair trial are that each side must have notice of any proceedings and of any applications made to the court (save in the narrow band of interim applications). Both or all parties must know what the other and the judge has read (unless public interest immunity applies). The essence of a fair trial is that the judge impartially hears both sides (audi alterem partem). Openness (where applicable in family proceedings) goes beyond this.

Alongside the coronavirus pandemic a variety of practice directions and guidance is being issued. So far as this does not comply with the law – statute law and common law – this practice directions and guidance are unlawful; and if not issued by the President of the Family Division (approved by the Lord Chief Justice) they are of limited value. In Re NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962 (30 October 2019) Lord Wilson recently recalled of a practice direction that they are not made under any clear statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] 1 WLR 2657 (at [48]): ‘a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.’

Only the rules cam make different provision for different courts (see eg Civil Procedure Act 1997, Sch 1 para 7; Courts Act 2003, s 75(4)). This is explained fully in the article. Parties must follow the law, which includes practice directions issued by the President. The law always trumps a practice direction or practice guidance; and that is even more the case if it is local practice guidance. All this applies even – perhaps especially – in times of Corvid-19.

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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