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Relief from Sanctions in the Family Courts

Chris Barnes, 4 Paper Buildings, and Jane Wells and James Billingham, Harney and Wells Solicitors, consider the lessons of H (Children) in which they acted for the appellant father.

Chris Barnes, 4 Paper Buildings, and Jane Wells and James Billingham, Harney and Wells Solicitors

Relief from sanctions has been a more prominent feature in civil proceedings than in family cases but perhaps following the judgment in H (Children) [2015] EWCA Civ 583 the time has come to look again at FPR 4.6.

The starting point is to establish the nature of a sanction and the circumstances is which one might be imposed. As per rule 4.5 of the Family Procedure Rule 2010 ("FPR"):

"(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

(2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.

(3) Where a rule, practice direction or court order–

(a) requires a party to do something within a specified time; and

(b) specifies the consequences of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties."

Where a rule, practice direction or order is breached, the sanction applied may be automatic or discretionary. A defaulting party may, by way of example, be prevented from defending a claim or element of a claim, filing a statement or pursuing an appeal. Sanctions can also apply in costs where, as per FPR 4.6(1), relief may only be obtained by appealing the costs order.

In the context of appeals brought out of time, the Court of Appeal has tended to analyse relief from sanctions without explicit reference to FPR 4.6. The principal focus has tended to be on the merits of the appeal or the issue at hand. Such was the case in Re F (A Child) [2014] EWCA Civ 789:

"15. If the matter had related to anything other than jurisdiction, the father might well have been shut out from being given permission to appeal so long after the event. But the delay, however damaging to F, cannot be allowed to stand in the way. As we announced at the conclusion of the hearing, we accordingly extend the father's time for appealing, give him permission to appeal and allow the appeal."

Relief from sanctions under FPR 2010
The framework for relief under FPR 2010 is found at rule 4.6 which sets out:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and the relevant pre-action protocol;

(f) whether the failure to comply was caused by the party or the party's legal representative;

(g) whether the hearing date or the likely hearing date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.

(2) An application for relief must be supported by evidence."

This follows precisely – with the addition of reference to "a child whose interest the court considers relevant" – the former incarnation of CPR 3.9. Indeed, prior to the FPR 2010 coming into force such applications for relief in a family context were governed by CPR 3.9 (as per para 47 Norris v Norris; Haskins v Haskins [2003] EWCA Civ 1084).

The central issue for the Court of Appeal in H (Children) was how far the merits of the defaulting party's case should weigh on an application for relief from sanctions. Undoubtedly the merits must fall within consideration of "all of the circumstances" but are also potentially relevant to the consideration of the administration of justice and the effect of failure to comply or of granting relief.

Relief from sanctions – the civil context
As set out by Dyson LJ in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537:

"1. … The traditional approach of our civil courts on the whole was to excuse non-compliance if any prejudice caused to the other party could be remedied (usually by an appropriate order for costs). The Woolf reforms attempted to encourage the courts to adopt a less indulgent approach. In his Review of Civil Litigation Costs Sir Rupert concluded that a still tougher and less forgiving approach was required. His recommendations were incorporated into the Civil Procedure Rules."

The revised version of the CPR came into force on 1st April 2013 including an amendment to rule 3.9:

"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders."

The degree to which the revision of rule 3.9 has tightened the regime for relief from sanctions has been considered by the Court of Appeal in two important judgments. In Mitchell v News Group Newspapers the central principle emerges in para 41:

"41. If the non-compliance cannot be characterised as trivial, then the burden is A on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not "led with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason … the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked on more favourably than applications for relief from sanction made after the event."

The effect of Mitchell was to radically reduce the willingness of judges in civil cases to grant relief from sanctions. Lord Dyson MR expressed the view that there was "now to be a shift away from exclusively focusing on doing justice in the individual case". Lord Dyson endorsed his own previous comments from the 18th implementation lecture on the Jackson reforms delivered on 22 March 2013:

"26. … Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.

27. The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. Those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds. But more importantly they serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so."

Through the case Denton and others v TH White Ltd and others [2014] EWCA Civ 906 (04 July 2014) the Court of Appeal sought to address some of the criticisms of the consequences of Mitchell including the "consequences of this unduly strict approach have been to encourage (i) uncooperative behaviour by litigants; (ii) excessive and unreasonable satellite litigation; and (iii) inconsistent approaches by the courts". [21] The Court in Denton considered "the guidance given at paras 40 and 41 of Mitchell remains substantially sound" but that "in view of the way in which it has been interpreted, we propose to restate the approach that should be applied in a little more detail". [24]

The impact of the underlying merits of a party's case on an application to extend time for the service of a Notice of Appeal was considered by the Court of Appeal in R (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. In that appeal More-Bick LJ said, at paragraph 46:

"If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases."

In the civil context there has – even after Denton – been a rebalancing from the previous regime. It explicitly serves to prioritise the overall justice of ensuring proceedings in general are efficiently pursued over the ability to do justice to each individual case. Ultimately this was viewed in Denton as being a reflection of the sad "fact of life" and the reality of "scarce public resources". [45]

Relief from sanctions – the family context
The need for family practitioners to consider the rules relating to relief from sanctions is only likely to be more pressing in the future. The President and other judges of the Family Division have made clear in a series of judgments that "[n]on-compliance with orders should be expected to have and will usually have a consequence". [W (A Child); H (Children) [2013] EWCA Civ 1177 (16 October 2013) para 52] It may be that the President's decision in MN (Adult) [2015] EWCA Civ 411 (07 May 2015) is a strong indicator that the Court of Protection will move in the same direction.

H (Children) [2015] EWCA Civ 583
The central question the Court of Appeal was posed in H was set out by McFarlane LJ at para 1:

"When considering an application to extend the time for appealing in a family case relating to children, what regard, if any, should be had by the judge to the overall merits of the proposed appeal?"

The case had a complicated procedural history which is set out in the judgment. By the time it reached the Circuit Judge considering relief from sanctions the appellant had not only been out of time on filing his notice of appeal by some 20 days but, in requesting an oral hearing for which FPR 30.3(6) prescribes the period of 7 days for the filing of request, the judge in fact noted that:

"[T]here was "absolutely no evidence" before him as to why the father had taken no action during the period of 8 months which followed the refusal of permission of appeal on paper." [14]

In the event the child subject to the appeal had been placed with adopters and it was the appellant's application for leave to oppose the adoption application (and its refusal in the first instance) that had prompted the renewed effort to appeal the original orders.

Whilst this was a particularly extreme example McFarlane LJ set out the context faced by appellate courts and the frequency with which appeals are lodged out of time:

"31. In recent times it has been the experience of this court, and I strongly suspect the experience of those discharging an appellate jurisdiction within the Family Court, that a growing number of parents and other family members whose child has been made the subject of a care order and an order authorising the local authority to place the child for adoption will, acting as litigants in person, issue a notice of appeal almost as a matter of course. In human terms, in an attempt to do anything that they possibly can to avoid the consequences of the orders that have been made, their actions are entirely understandable. As lay parties, they may not be aware of the 21 day time window for appealing and their notice of appeal may be lodged a significant time after the lower court has made its final orders.

32. Each application for permission to appeal necessarily takes time to progress to a paper determination and/or oral hearing. Delay often arises from the need to obtain a reliable note of judgment or a transcript. When this unwelcome period of time to process the permission to appeal application comes after a delay measured in months before the applicant has issued the notice to appeal, the impact upon the welfare of the child, and the ability of the local authority to progress with its responsibilities under the placement for adoption order are all too plain."

The merits
The Court of Appeal was acutely conscious – as the circuit judge had been – of the impact of delay in this instance and particularly the consequences for the child, now placed with adopters:

"42. In approaching this case I do not take any issue with HHJ Farquhar in highlighting the eight bullet points set out in paragraph 28 of his judgment. In particular, the significance of the manner in which W's life has moved on in consequence of the district judge's orders is of a high order. On the basis that the district judge's order stood, W was welcomed into the family of her prospective adopters on the basis that this was to become her family for life and they and she have no doubt engaged upon establishing a close and loving relationship of that high order."

The appellant's case was that: [21]

"… the overall merits of the underlying appeal are extremely strong. She points to the lack of any real evaluation of the case regarding W in the district judge's judgment. In a case where the district judge concluded in terms that the father was providing "very good care" to the three older children and that they could remain in his care subject only to a supervision order, there was, submits Miss Branigan, a requirement for the judge to spell out why it was nevertheless necessary and proportionate for their baby sibling to be separated off and placed for adoption."

As set out by McFarlane LJ the conclusion of the district judge at first instance in making care and placement orders "…runs to only two pages, one page of which is occupied by the text of Adoption and Children Act 2002, s 1 ["ACA 2002"]. Indeed, the district judge's total analysis with respect to the outcome for W is contained entirely within the compass of the following three sentences…" [5]

As a consequence the local authority, though opposing the appeal, had taken the unusual (but in the Court's view appropriate course) of "candidly conceding" that the underlying appeal would succeed noting:

"If, contrary to the local authority's primary position, the appeal were to succeed and the Court of Appeal were to grant an extension of time to the appellant to apply for permission to appeal against the care and placement orders made on 19 September 2013, the local authority would not oppose the grant of permission to appeal, nor, given the patent deficiencies in the judgment, could it sensibly oppose the grant of the substantive appeal against the making of the care and placement orders." [23]

The critical finding of the Court was as follows:

"44. I consider that HHJ Farquhar fell into error in two respects. He underestimated the underlying merits of the father's appeal, considering that the new grounds of appeal were merely arguable when, as I have indicated, they were in truth unanswerable. That flawed analysis caused him to attribute no real weight to the underlying merits in his relief from sanction analysis. That this is so is demonstrated by a key sentence within paragraph 27 of the judge's judgment where he says 'It would be different perhaps if it was completely unarguable to oppose it, but that is not the case here.'"

Points arising
The judgment raises important points of practice for courts at first instance and on appeal:

"34. … Whilst accepting the inevitability of this source of, in some cases, highly adverse impact on the welfare of a child, every effort should be made to avoid its occurrence. One strategy which would seek to avoid the problem would be for the judge in every case where a final care and placement for adoption order is made to spell out to the parties the need to file any notice of appeal within 21 days and for the resulting court order to record on its face that that information was given to the parties by the judge. Secondly, this court and any appellate judge in the Family Court, must continue to strive to process any application for permission to appeal in a public law child case with the utmost efficiency. Finally, the fact that an application for permission to appeal which relates to a child in public law procedure is out of time should be regarded as a very significant matter when deciding whether to grant 'relief from sanctions' or an extension of time for appealing."

What the Court, however, leaves open is the question of the role of "less strikingly clear" merits in an application for relief "yet the consequences of the order, namely implementation of an adoption plan, remain at the highest level of intervention and therefore consequence for the proposed appellant and his or her children". [41]

Though McFarlane LJ expressed that he was "currently unpersuaded that there is any ground for distinguishing family law, in this respect, from the ordinary run of cases" the matter may fall to be considered in future. Can the same prioritisation of resource limitations and of doing overall justice to all court users apply in the family courts? Can the family courts permit – as was acknowledged to be the consequence of the Jackson reforms – less justice to be done to each individual case?