A domestic abuse bill
On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer https://www.theguardian.com/society/2019/jan/20/ban-on-cross-examination-of-domestic-abuse-victims) their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/772202/CCS1218158068-Web_Accessible.pdf. The main features of the bill are:
- A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before.
- A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2).
- New police powers and preventative notices and order (Part 3).
- Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).
There will be ample time to consider the bill as it goes through Parliament, to debate its consequences and the procedural rules under it. A question which the bill anticipates and which is relevant now, in non-molestation and occupation order proceedings under the Family Law Act 1996 (FLA 1996, Part 4), is: are such proceedings heard in open court (as might be expected, save where children are involved) or in private? (Ie in ‘secret’ as Dame Elizabeth Butler-Sloss P preferred in Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FCR 385). The plan under the bill is that if domestic abuse emerges in any proceedings – civil, criminal or family – then the powers under the bill are in play (see cl 27).
It has for a long time seemed odd to me that on the same facts an alleged abuser (AA) can be prosecuted in open court; whereas in family proceedings the complaint is dealt with in secret (or ‘in private’ per Family Procedure Rules 2010 (FPR 2010, r 27.10). Do the rule-makers have power to say that FLA 1996, Pt 4 proceedings should be in ‘private’; and if they have no such power, what is the default position for such hearings? (Spoiler alert: I say they have no such power; and that the starting point must be open court justice for the AA and the complainant.)
Open justice: a common law principle
First, some basic legal principles. What is to be heard in open court – the ‘open justice principle’ – is defined by the common law as explained by the House of Lords in Scott & Anor v Scott  UKHL 2,  AC 417; though under a principle which dates back at least to just after the Cromwellian revolution. As Scott explained, hearings in ‘chambers’ were guaranteed only for children proceedings; for hearings concerning ‘lunatics’; and, where publicity of hearing might destroy the point of the trial (eg patent litigation).
Second, the common law can only be changed by a higher court decision, or by an Act of Parliament. The open justice principle has not been revised or tempered by statute. However, the common law has moved on since Scott: for example, national security and confidential information of a party has been added. The common law secrecy/privacy list is best summarised now by CPR 1998, r 39.2(3). The same factors as in r 39.2(3) are set out for secrecy in divorce proceedings – normally held in open court – by FPR 2010, r 7.16(3).
Third, a rule cannot make law unless it is permitted to do so by statute. This was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 as follows:
‘ Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)  Ch 1210 [per Lord Denning MR].’
Rules exist only to regulate the law. FPR 2010 is made under powers given to the Family Procedure Rules Committee (FPRC) under Courts Act 2003, ss 75-76. There is no power there to amend, revoke or create new law (save in one case to ‘modify’ rules of evidence).
Injunction hearings under Family Law Act 1996, Part 4
The answer to how FLA 1996, Part 4 applications are to be heard – as the law now stands, and regardless of the domestic abuse bill – is provided by Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FCR 385. This case concerned proceedings under Part 4 (a failed occupation order application by Ms Clibbery). It was decided long before FPR 2010 were made; but to the extent that the case defines the common law (which it does) it overrides the rules. It is law. The rules are merely, well rules (see Lady Hale in Dunhill).
Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keane LJJ agreed) said of the applicable terminology (‘chambers’, ‘open court’ etc):
‘ … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.'
 I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.’
The court held that FLA 1996, Part 4 hearings were to be held in ‘private’. This meant (FPR 2010 does not offer any other definition for ‘private’) that the public were allowed in, subject to space being available. Further Ms Clibbery could not be prevented from handing over papers from the case to the press. The rule-makers (FPRC) probably overlooked Dame Elizabeth’s definition; but that does not alter what the common law says. And what Dame Elizabeth held in Clibbery also explains by my use of the word ‘secret’ for private hearings.
Family Procedure Rules 2010 and private hearings
FPR 2010, rr 10.5 (hearings of applications under FLA 1996, Part 4) and 27.10 (all other hearings under FPR 2010, save where a rule says otherwise) are boldly asserted by FPRC to ‘be in private’. Most family proceedings would be private in terms of the list in CPR 1998, r 39.2(3). But that is not because a rule says so. It is because the common law (summarised in r 39.2(3)) says so.
If that is right then, on the same facts, a case of domestic abuse – under the existing law – should be dealt with in open court, either as a criminal trial; or, unless otherwise ordered (eg because children may be affected by publicity: see eg Re S (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593,  3 FCR 407), in a family court. Further questions may arise: for example, as to the complainant’s anonymity; of their cross examination by an AA (see Part 4 of the bill); or as to protection of vulnerable witnesses (see eg FPR 2010, Pt 3A): that is a separate subject for another day. The starting point, as a matter of law, must be open justice.