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Unnecessary Private Law Applications – a warning shot from the judiciary

Marie Crawford, barrister of Becket Chambers, reflects on a recent children law judgment and its implications for parties and practitioners.

Marie Crawford, barrister of Becket Chambers.

In Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44 HHJ Wildblood QC, in a case with a title that gets straight to the point, has sent a message directed at family lawyers. Its stated targets are 'parties and lawyers'. However, given that litigants generally don't read law reports, it's a safe assumption that practitioners are the target audience and are to carry the message to clients.

It warns of 'criticisms' and 'sanctions' being imposed where unnecessary private law applications are brought to court. Whilst explicitly stating that he is not giving any general guidance and limiting himself to his own DFJ area (he is the DFJ for Bristol), it would not be overly presumptuous to anticipate that most DFJs and members of the judiciary would wholeheartedly agree with his comments.

The case that led to this separate judgment being published arose from a successful appeal granted by HHJ Wildblood QC by a mother against an order by a legal advisor using their delegated powers, for the disclosure of five years of medical records (despite the subject child not yet being 2 years old and disclosure having already been ordered from two local authorities and the police for a five-year period). The mother's position was that her medical records for the period of the alleged domestic abuse incident to date were sufficient.

In finding that the order was made erroneously (concluding that it was unnecessarily and disproportionately invasive of the mother's right to respect for her private life) and allowing the appeal, the judge used the opportunity to a give this warning about the number of 'unnecessary private law applications' clogging up the courts.

As family practitioners, our attention is drawn to the word 'unnecessary', how it is defined, and possibly to thoughts of how our clients may not agree that the applications they would like to make are anything other than absolutely necessary / essential / vital. This tendency of parties to see matters this way is of course well-known to practitioners and the judiciary alike. This is presumably why the warning of 'sanctions' is made so that they can be deterred from making their necessary / essential / vital applications.

What those 'sanctions' may be was not stated in the judgment, but it may be assumed that they will relate to costs. Therefore, in the future, practitioners would have a duty to warn clients of such a possibility. I doubt the threat of 'criticism' would have the same effect on some parties. If, however, that 'criticism' is aimed more at the representatives than the parties themselves, would that potentially mean that a representative might have to tell their client that they cannot make a particular application for fear of criticism? Would any such criticism be made public in a published judgment? We know not. What we do know is that in this case the names of counsel and solicitors in the published part of the judgment were omitted, so no criticisms of any of the lawyers involved in this case (if indeed there were any) were made public.

It isn't known whether when dealing with the particular case that led to this judgment being released for publication (because that judgment was delivered in private), HHJ Wildblood QC made any costs orders against the father upon the mother succeeding in her appeal. A 'sanction' may have been applied in that case; there is no way of knowing.

In the judge's view, presumably, this case was 'unnecessary litigation'. Although he explicitly does not apportion blame to the parties or lawyers in the case (in the published part of the judgment) for appealing what was an erroneous order, his message was that the issue of disclosure should never have needed to be determined by the court in the first place and should have been sensibly agreed between the lawyers: 'If common sense had prevailed, it would not have been necessary for the legal advisor to determine the issue at all and, when faced with the erroneous order, common sense could have led to the avoidance of this appeal'.

His comments also extend to the need for the appeal of the order made, suggesting that that too should have been resolved out of court.

The law report summarises the reasons for publishing the judgment:

'The Judge released this judgment to highlight the extent to which court lists are being filled with interim private law hearings that should not require court involvement. He estimated this court would have double the number of outstanding private law cases in January 2021 than it had in January 2020. He observed: 'not only is unnecessary litigation wasteful. It clogs up lists that are already over-filled – in terms of the over-riding objective, it amounts to an inappropriate use of limited court resources'.

The judge gives examples within the judgment:

'To further explain the problem, I give these examples of similar requests for micro-management that have arisen before me in the past month: i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children's passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction)? iii) How should contact be arranged to take place on a Sunday afternoon? Other judges have given me many other, similar examples'.
These examples, whilst they may make us wince and have family practitioners shifting uncomfortably in their seats, may remind some of us that we too have made submissions, on the insistence of clients, of an equally 'unnecessary' nature.

Could the message be any clearer? Judge for yourselves:

'The message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.'

The only part which could benefit from some clarification is what 'sanctions' the court has in mind and whether they would be aimed at the parties or their representatives, or both.

In summary then, the takeaway from this perhaps is not so much there being an issue with the making of a substantive application for a child arrangements order if it is genuinely necessary and it has not been possible to reach agreement. The criticism appears to be, from the examples given, directed more towards the ancillary issues that arise within those proceedings which parties are not able to agree on, such as in the examples given by the judge, as referred to above, which, to be fair, would test anyone's patience.

The message seems to be reach agreement on such issues, apply common sense and be reasonable, do not ask the court to decide those matters, or you will be criticised and may be sanctioned.

It is not difficult to imagine the number of 'eye rolls' that message may elicit from family practitioners who may say, 'If only it were that easy!', and perhaps also that if the parties were able to agree an issue, they would have done so, with the assistance of their representatives. We may, as practitioners, have a lot of sympathy with that sentiment, particularly when we know that parties are often not reasonable for a number of complex reasons and despite huge effort on the part of the practitioner. Whether they are unable to do so is because they cannot help but respond emotionally, rather than rationally or 'reasonably'  in the midst of their relationship breakdown; are going through ` difficult family breakdown and all that may entail; or suffering the aftermath of trauma from domestic abuse; mental health issues; drug and/or alcohol addiction.

However, on the other hand, we all bear some responsibility for where we are now (apart from that part caused by a global pandemic) and we have a duty to help our clients to reach an agreement in respect of child arrangements if at all possible. Sometimes it is simply not possible, despite our best efforts.

The threat of court sanctions may assist us in those efforts, to make clients behave more reasonably, sparingly used, costs sanctions may be a powerful tool in some circumstances.

In any event, we have been warned!