Mrs Justice Nathalie Lieven has been appointed to the High Court bench, with effect from today. She is assigned to the Family Division. This post welcomes that appointment; and welcomes it in particular since Lieven J (formerly a QC at Blackstone Chambers) comes from a predominantly administrative law background. Perhaps it will help to develop a greater understanding amongst family lawyers of administrative law practices and disciplines. This will be especially so in Children Act 1989 Pt IV cases (care and other local authority children proceedings) where there is already a high administrative law content.
Family lawyers can be slow to appreciate the importance and availability to their family breakdown clients of judicial review procedures. A notable exception was Giltinane v Child Support Agency  EWHC 423 (Fam),  2 FLR 857, where Munby J in the Family Division dealt with an appeal against a magistrates’ court child support order. The father was out of time in dealing with the tortuous appeals procedures; but Munby J was able to deal with the out-of-time appeal by putting on his Administrative Court hat and dealing with the matter by way of judicial review.
It is not necessary, surely, to limit such cases to child support (as in Giltinane)? Identification of a human rights element can make legal aid available, subject to means. In the more recent case of In re M (A Child: Care Proceedings)  EWCA Civ 240,  2 FLR 690 (20 February 2018), the mother of a child succeeded in the Court of Appeal in overturning a placement for adoption order. She was denied legal aid (maybe her means were too high?) on the appeal. There is no automatic availability of legal aid on a care proceedings, or other children, appeal.
That said, it might have been possible to make out a human rights issue for legal aid for a parent in the Court of Appeal (subject to means) such as to engage Legal Aid, Sentencing and Punishment of Offenders Act 2012 s 10(3) (exceptional legal aid case determination). If that is denied, the parent can apply on judicial review for the Legal Aid Agency to compel grant: see R (Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622,  1 WLR 2247 (not a family case; but the principles are the same; and see eg R (JG) v Lord Chancellor  EWCA Civ 656,  2 FLR 1218,  WLR (D) 235).
A number of recent cases have seen judges complain of non-availability of secure accommodation: see eg In re M (Lack of Secure Accommodation)  EWFC B61, HHJ Rowe QC, and In re T (A Child) (Deprivation of Liberty: Consent)  EWCA Civ 2136,  WLR(D) 711. Complaints were made of failings in the education departments. In either case the Secretary of State for Education could have been brought to court if there is a justiciable judicial review point. This might make a difference for the child and for the local authority concerned; and it might do so relatively quickly and economically.
Judges complain – with justification – of the lack of facilities in family courts for children vulnerable witnesses and parties. But how often has anyone asked a High Court judge in judicial review to compel HM Courts and Tribunal Service to provide facilities to which children, parties – say abused women – and witnesses are entitled? These facilities are matters of right: such as intermediaries, video link and separate waiting facilities. If all judges, at least in the High Court, had power to adjourn for issue of judicial review, or themselves, of their own initiative, to make orders to compel public bodies to answer for failures of expenditure, that might assist disposal of secure accommodation and vulnerable witness cases.
A real challenge for the Family Division – especially where children’s rights are concerned – is in relation to Courts Act 2003 s 75(5). This says that Family Procedure Rules 2010 should be “simple and simply expressed“. If Civil Procedure Rules 1998 are a criterion for simplicity then surely certain family proceedings rules fall well below that simplicity bar. For example, Black LJ (as she then was) in In re W (A Child) (Care Proceedings: Child’s Representation)  EWCA Civ 1051,  1 WLR 1027 (at ) described the rules in question as of “complexity”. On another occasion a long-standing family circuit judge confessed to finding Family Procedure Rules 2010 Pt 16 (representation of children) “very confusing”. If family lawyers of many years’ experience – Lady Black is now in the Supreme Court – find the rules “complex” or “confusing”, that suggests they are not – as a matter of self-evident fact – “simple and simply expressed”.
It gets worse. These rules – Pt 16 especially – are designed for children to know when they can have their own lawyer and express their views to the ‘court’ (see eg United Nations Convention on the Rights of the Child 1989 Art 24). Procedure is distributed between Children Act 1989 s 41(3), Family Procedure Rules 2010 Pt 16, parts of Family Procedure Rules 2010 Pt 12 and various Practice Directions. This is in a legal system which was intended to develop children’s rights – if they are of “intelligence and understanding” (Lord Scarman’s terminology) – alongside Gillick v West Norfolk and Wisbech AHA  UKHL 7,  1 AC 112,  1 FLR 224.
Are some of these rules, as they stand, ultra vires the rule-makers? They were drafted originally in 1991-2, and not amended (eg in similar style to CPR 1998) when grafted onto the new rules in 2010. In the year of the thirtieth anniversary of Children Act 1989 and of the UN Charter is it not time for serious review – judicial or otherwise – of the continued complexity of child representation in the family courts?
Photograph of The Honourable Mrs Justice Lieven via Judicial Appointments Commission.