This is a guest post from an anonymous lawyer.
On 25 September 2020, HHJ Wildblood QC released a judgment in Re B (a child) (unnecessary private law applications). The judgment is only nine paragraphs long, and the full version can be read here.
The judgment has generated some coverage in the legal and mainstream press, and some of the below the line comments suggest that at least within the legal community it has had a mixed reception (see the comments below the line on this article in The Gazette, for example). In this blog post I look at why that might be.
What is the judgment about?
The judgment is ostensibly concerned with a mother’s successful appeal within private law proceedings, granted by HHJ Wildblood QC. However, this judgment does not deal with the substantive appeal itself. For that, the judge has given a separate main judgment in private, which is referred to but which has not been published (that is a shame, from what we are told of it that appeal might well have held public interest given that it appears to have involved an error on the part of a Legal Adviser in circumstances where they are now being expected to make more and more difficult decisions than they historically have, directly as a result of the covid crisis).
In fact, all the judgment does is to give a brief outline of the appeal: a disclosure order was made by a Legal Adviser requiring the mother to disclose her medical records. The judgment tells us that decision was wrong without really explaining the legal basis for that decision. Quite separately, the judgment then goes on to warn both parties and lawyers generally against bringing ‘unnecessary applications.’ The judge highlights the increased case load in his court and concludes with a warning as follows:
‘…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.’
Six paragraphs from this nine-paragraph judgment focus on the judicial concern that unnecessary private law applications are being brought before the court.
In paragraph 7, the judge gives examples of ‘micro-management’ that judges sitting in the Family Court have had to determine in the past month. These include which junction of the M4 should be used for a contact handover, and how contact should be arranged to take place on a Sunday afternoon. None of them appear to have anything to do with the case under whose banner the document is published.
Similarly, in paragraph 6, the judge observed that:
‘ the judges at this court have an unprecedented amount of work. We wish to provide members of the public with the legal service that they deserve and need. However, if our lists are clogged up with this type of unnecessary, high conflict private law litigation, we will not be able to do so.
Finally, HHJ Wildblood QC also observed that as of September 2020, his court has 1.5 times the number of private law cases outstanding that it had in January 2020, and anticipated it will have double by January 2021 [Ed, Cafcass private law statistics out recently show a marked increase in September 2020 compared to Sept 2019].
Is it actually a judgment?
A judgment is the record of the judge’s reasons for a particular decision. In it the judge will set out the facts, the evidence and the law, before explaining her decision and reasons. There are two key features to a judgment: (i) the ratio decidendi (ratio for short); and (ii) obiter dicta (obiter for short). Yes, sorry – these are Latin terms.
Simply put, the ratio decidendi is the legal reasoning or principle which determines the outcome of the case. While this sounds straightforward in theory, there is a particular skill to working out what the ratio actually is. It will often take the judge the majority of the judgment, often running to many pages, to reach the ratio decidendi of a case. The ratio is the legal rule or point that is established in that case – and which can be extracted and (in the right circumstances) applied to other cases. In a judgment delivered by a senior judge or appeal court the ratio will be binding on other less senior judges, whose decisions must not go against the ratio in other cases to which it applies (i.e. it sets a precedent).
Obiter dicta literally translates as ‘a thing said by the way’. It is an incidental statement or remark. It is not part of the legal ratio of the case, but a judicial comment made as part of a judgment as ‘an aside’ to it. This does not mean that obiter comments are unimportant, but they do not bind other, more junior judges. Such comments are often used by lawyers in the appeal courts, where there is no previous case precedent that applies to their case currently before the courts – they can be persuasive even where they are not binding.
It is arguable that Re B is not a judgment. What is reported is not in fact the substantive reasons for the decision in the case at all, nor does it even appear to be about that case. HHJ Wildblood QC explains that he has dealt with the substantive issue and the appeal ‘separately in a much longer judgment.’ In fact, the judge is clear in the same paragraph that he is not releasing this judgment for publication ‘because of any legal point relating to the disclosure of medical records.’ It seems implicit from this paragraph that the absence of a true ratio is accepted and acknowledged.
Now, you can have a judgment without obiter dicta, but you cannot have a judgment without a ratio decidendi. A generalised comment on patterns of litigation that has no connection to the individual case under consideration is little more than a judicial essay (or a blog post if you prefer).
Although not all judgments published on Bailii are judgments which set precedent, they do usually all contain the key features we have set out above, and Re B is something of an oddity in not doing so. More senior judges do sometimes issue Judicial Press Releases or Guidance, but even amongst senior judges this is comparatively rare. So, if Re B is not a traditional judgment or guidance, what is it? Some argue, not without force, that this is just judicial comment masquerading as a legal judgment.
Well this is all very interesting, but what about the actual comments?
Forget the latin and what label we should give to this document, let’s look at whether the judge might actually have a point…
There are four main points that arise from the judge’s warning comments:
1 Is there such a thing as an unnecessary application?
The judge doesn’t explain what he would or would not class as an unnecessary application. So let’s assume that any application which doesn’t involve a safeguarding issue is ‘unnecessary.’
Most family lawyers will recall a dispute they have had over a small or pedantic argument in their practice. However, are proceedings, or a dispute between parents, ever just about that small point, such as the handover destination on the M4? I would suggest not. Very often, such disputes come before the court because communications between co-parents have broken down. While from the outside it may appear to be just about which junction of the M4, in reality the dispute is about more than that. It is about when the child will get to bed after their journey for example, how much time they will have with siblings or a quality bed-time routine with a parent. It is about what each parent genuinely believes is in the best interests of their child, and the break down in the ability to communicate that and/or appreciate the views of the other party. This can happen for a variety of reasons, which are complicated and nuanced. It is not just about which junction of the M4; it is about the ripple effect of events in a child’s life that flow from that decision.
Another scenario may be that both parents have worked very hard negotiating outside of the court room itself with their lawyers to agree their child arrangements, but just have the handover location on the M4 outstanding. If parties have worked to agree all substantive arrangements for this child: term-time, weekends, holiday contact, birthdays, phone calls, then they are to be commended. Managing to agree all those matters will have saved the court, and the parties themselves, a contested hearing lasting perhaps a full day or longer, with all the emotional and financial cost that entails. If then a small amount of court time is required to finalise where handovers should take place, and assist the parties in finally bridging the gap, surely it is a positive if this is all that is left between them to determine, and they have agreed everything else consensually?
2 If there is such an unnecessary application, does that mean the court should not hear it?
Even if you accept there can be such a thing as an unnecessary application, does this mean it should not be heard? If there were an application and the parties could not agree, that does not mean it doesn’t deserve or require resolution. It may be unnecessary by the court’s standards and focus on suffering harm and safeguarding concerns, but if it is a disagreement that causes a child’s parents to disagree, and leads to a dispute or uncertainty in a child’s life, then surely that child deserves for it to be resolved? OK, perhaps it is something that the separated parents, objectively, in the court’s view, should have been able to agree on. But the fact they cannot is not the child’s fault and it needs to be sorted out. Regardless of what that issue is, it will be in that child’s best interests under the welfare principle for it to be determined – even if the decision is that the court is declining to make an order under the ‘no order’ principle. Making decisions where two parties find themselves unable to agree is the court’s job.
3 Can or should lawyers be held responsible for ‘unnecessary’ applications?
Whilst at paragraph four, the judge is clear that he is ‘not pretending to give any guidance on the issues that I raise’, saying ‘It is not for me to do so’, although this document does have the character of telling people what not to do.
The warning against bringing unnecessary applications appears to be aimed at both parties and their lawyers. But are lawyers to be blamed for what HHJ Wildblood QC terms unnecessary applications?
The majority of solicitors practising in family law are members of an organisation called Resolution. Resolution members agree to follow the Resolution Code of Practice in their daily working lives, which requires them (amongst other things) to work to reduce or manage conflict and to help their clients put the best interests of any children first.
Under the ‘overriding objective’ all lawyers and parties are required to assist the court to resolve cases justly, and this includes by allotting an appropriate share of the court’s resources to the case, while taking into account the need to allot resources to other cases.
While lawyers advise their clients, sometimes strongly, on the best position to take and what might be a sensible offer or settlement, they are ultimately required to act on their client’s instructions. This means that while they advise clients, the client does not have to follow that advice, and they are entitled to instruct their lawyer as to their position and what they want the court to order. Because lawyer-client conversations are subject to legal professional privilege they are private and the court will not know what conversations a party has had with their legal representatives, or the advice they may have been given – they will not know whether a party has had good advice they have ignored, bad advice they have followed or no advice at all.
It is therefore perhaps unfair to imply generalised criticism of lawyers for ‘unnecessary’ applications. This is particularly so when considering the Resolution Code of Practice and the BSB Handbook (the Code of Practice for Barristers). The core duties which barristers must follow include that barristers must take reasonable steps to avoid wasting the court’s time. If therefore, a matter comes before the court which it considers (rightly or wrongly – see above) to be an unnecessary waste of time, the court must assume that the barristers before it have complied with their duty to the court and given such advice as to avoid the case requiring court determination.
Nor is it necessarily a fair criticism to bring against parties themselves either. Most who have been to court know how emotionally and financially stressful it is and how inefficient it can be in resolving disputes. Many parents are simply unable to resolve their disputes – either because they do not have the resources themselves or because of the abusive or unreasonable behaviour of the other parent.
4 So, what’s the problem with Re B?
There may be a risk that, as a result of reading this judgment or the press coverage of it, members of the public ‘get the message’ and do not bring a legitimate application for fear of being criticised. This is particularly so given that the judgment contains a warning that costs sanctions may be imposed.
Take a non-resident parent who feels the time they spent with their children is being restricted unnecessarily but who does not have any safeguarding concern regarding the children. Will they feel able to bring an application? Will they be confident that the judge will listen to them? Might they now be less sure of the response they will receive from the court, and ultimately risk having a less developed relationship with their children, which might may wilt away altogether in the worst-case scenario. No doubt HHJ Wildblood QC does not mean to include applications such as those brought against a backdrop of domestic abuse, where the court’s assistance is very often sadly necessary – but it may not be clear to all litigants that this very generic warning against coming to court is not meant for them.
The judge is of course correct when he highlights that there is problem caused by the greatly increasing backlog of work the family courts are currently dealing with. It is undoubtedly a problem which needs addressing urgently. But is it appropriate to point blame or threaten sanctions at the lawyers or the parties themselves? I don’t think it is. These are challenges which pre-existed Covid, and which need to be addressed on a broader policy level, which can then filter down to benefit both those who work in courts and those who apply to them. It is a question of funding, resources, and signposting to those alternative resources once properly established and funded (the Private Law Working Party is currently working on such issues and is due to report soon).
Lawyers, judges and court staff are overstretched perhaps more than ever before, and it may be that this intervention will not support the constructive working relations that are so essential to the recovery plan. The comments on the Gazette article certainly suggest the judgment may not have been received as intended by all. One anonymous reader commented:
‘…I’ve been struck by how quick Judges are to talk about how hard they are working, and how grateful they are to the hard working court staff, while at the same time excepting practitioners to pick up the slack caused by the court staff working from home, and criticised for anything falling even slightly below normal standards.
I think these criticisms could, and should, have been made directly to the individuals concerned, and if the Judge has noticed that a specific firm or individual is bringing trivial and inappropriate cases to court on a regular basis, to speak to that firm or individual directly…’
Another reader wonders how the parties feel at their dispute being used to make unrelated comments on ‘unnecessary’ applications at large – emails to the appropriate group lists of local practitioners would have been more discrete, and may have resulted in a more positive response, without straining the unity required to achieve recovery moving forwards.
Feature pic : copyright Lucy Reed 2020
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