Comment

The deprivation of a child's liberty

The making of a secure accommodation order lies at the extreme end of the court’s powers. However, they are not uncommon. They are, in fact, fairly regularly used in relation to teenagers who put themselves in risky and harmful situations, apparently through choice. Such an application will usually arise following a period of time in foster care or residential accommodation. They will often involve teenagers who are the victims of sexual exploitation or who engage in alcohol and/or drug misuse.

The deprivation of a child’s liberty is something which family practitioners have, perhaps unavoidably, become hardened to. The case of Re W (A Child) [2016] EWCA Civ 804 is a timely reminder of some of the fundamental legal principles in respect of secure accommodation orders but also raises a number of ideological points with which many may feel sympathy but which ultimately did not persuade the Court of Appeal.

In this case, the child was rapidly approaching majority. In fact, at the time of the appeal, she was 17 years and 11 months’ old. So in this case, not only was the Court grappling with the most draconian of orders, but a child who only marginally fell within the Court’s jurisdiction and whose wishes were clearly against any form of secure accommodation. She had been beyond parental control for several years but remained at home until the age of 15 until she was accommodated by the local authority.

One key point for the appellate court was which subsection of section 20 of the Children Act 1989 the child had been accommodated under. It was argued for the child that she was accommodated under section 20(5) which permitted a local authority to accommodate a child in a community home 'if they consider that to do so would safeguard or promote his welfare'. If this argument had succeeded, it would have precluded an application for a secure accommodation order pursuant to Regulation 5(2) of the Children (Secure Accommodation) Regulations 1991/150.

The Court of Appeal was not persuaded. It held that this was not a case where accommodation was provided merely to safeguard or promote the child’s welfare. It was a case where her welfare would be seriously prejudiced if she was not provided with accommodation. Her accommodation by the local authority therefore fell within section 20(3) which opened the door to an application for a secure accommodation order.

There are two criteria for the making of a secure accommodation. The first being that the child has a history of absconding, is likely to abscond from any other description of accommodation and, if they abscond, they are likely to suffer significant harm. In practice, this is very often used with children who do not stick to the rules of a residential placement, for example by breaking the curfew and returning late or many days later.

However, the Court of Appeal has reaffirmed the interpretation of the word 'abscond' in terms of escaping indefinitely from an imposed regime. The child disregarding the rules of the unit and absenting herself for limited periods did not satisfy the definition of absconding. Therefore, the first of the criteria was not available to the local authority.

This is likely to come as quite a surprise to many practitioners and courts alike. It will have a significant impact upon local authority applications in future as presently the majority are pursued on the basis of absconding behaviour.

However, the second criteria remained open and in this case was satisfied – if the child is kept in any other description of accommodation he is likely to injure himself or other persons. One can imagine that there might be some argument as to the correct interpretation of 'injure' in this context but with the definition of 'harm' being so wide, such arguments are unlikely to find any traction.

One of the most interesting arguments put forward on behalf of the child was to challenge the valid jurisdiction of a local authority to seek to do what those with parental responsibility cannot legitimately do – lock the young person in their bedroom. It was also said on behalf of the child that there was an inequity for a restricted class of young people, who have not been sentenced to detention after conviction for a criminal offence or in consequence of mental health issues, but for whom detention was a prospect.

This is all the more interesting because it arises for young people who are 'looked after' by the local authority but have not been made the subject of a care order after due process of law, and who cannot be made the subject of a care order by virtue of their age. It is a peculiarity of the Children Act.

The Court of Appeal did not give away their sensibilities on the ideological issues and instead re-stated that a local authority has a clear statutory authority to restrict the liberty of a child, subject to the sanction of the court. The imminence of the child’s 18th birthday does not prevent them from continuing to be recognised in law as a child, nor do their wishes and feelings, which invariably will be against any form of secure accommodation, prevent the Court from making such an order. 

The Court of Appeal also clarifies that, despite the mandatory wording of section 25(4), ie that if the criteria are satisfied, the court shall make an order, this is subject to necessity and proportionality. This will be fact specific and the courts will consider what other attempts have been made, or could be made, to safeguard the child before making a secure accommodation order.

Whilst the Court of Appeal was anxious to posit a secure accommodation order as protective rather than punitive, it cannot fail to be regarded as a punishment by the child in question. Whilst the argument for injunctive relief against the malign attentions of disreputable men did not succeed in this case, primarily because the Court could not provide such relief against unknown individuals, this should not deter practitioners from seeking such relief in cases where a child’s abuser(s) is known.

This case is therefore not only a useful reminder that absconding means absconding and not simply breaching the rules of a placement, but an encouragement to practitioners to think creatively about less draconian protective measures.

Co-written with Emma Kendall a barrister at St Phillips Chambers

Comment

Non molestation orders shouldn't last forever

Comment

Non molestation orders shouldn't last forever

 Further Practice Guidance from the President on Non Molestation Orders

 

Following discussions with the Association of District Judges, the editors of the Red Book and others, the President of the Family Division has revised his Guidance, which was originally issued in 2014. The Practice Guidance on the Duration of Ex Parte (Without Notice) Orders comes into effect today. It is essential reading for anyone who undertakes this work and who hears it.

Earlier this year figures from the Ministry of Justice confirmed that the number of non-molestation orders issued by the courts to protect people from harassment, intimidation or violence had increased by 21 per cent, from 4,925 to 6,101, between 2012 and 2014 in England and Wales.

This barely comes as a surprise, as following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013 the scope of services funded as part of civil legal aid radically changed. Legal aid in private law disputes has all but ceased which we know to our cost, save for where there are issues concerning domestic violence or child abuse and specific evidence fulfilling the requirements of regulation 33 or 34 of the Procedure Regulations is provided in support of this. As a consequence non-molestationorders are also the entry point for a legal application in Children Act proceedings.

A non-molestation application is usually an ex parte (without notice) application to the court. It had become the practice, and to a great extent I think it still is, that at that hearing the court would make non molestation orders for a period of up to one yearor indeed unlimited periods and include a provision in the order for it to be “considered at a further hearing on a date to be fixed by the court officer on request by the respondent”. The onus being on the respondent, to bring the matter back to court if they took issue.

This Guidance was originally issued on 13 October 2014. This revised Guidance, supersedes the previous Guidance.

The President made the following points in his Practice Guidance:

“1 The Magistrates’ Association and the National Bench Chairs’ Forum have raised with me the question of whether it is proper to grant an ex parte non-molestation injunction for an unlimited period. They suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.

2 In expressing that view, the Magistrates’ Association and the National Bench Chairs’ Forum are entirely correct. To grant an ex parte (without notice) injunction for an unlimited time is wrong in principle. The practice of granting such orders for an unlimited time, if this is still occurring, must stop.

3 Subject only to paragraph 8, the same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order.

4 The law is to be found in Horgan v Horgan [2002] EWCA Civ 1371, paras 5–6 (Ward LJ), R (Casey) v RestormelBorough Council [2007] EWHC 2554 (Admin), paras 37–41 (Munby J), In re C (A Child) (Family Proceedings: Practice)[2013] EWCA Civ 1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ) and Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras 49-61, esp paras 59-61 (Munby P).

5 The relevant principles, compliance with which is essential, are as follows:

(i)An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).

(ii)The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made.How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6,often a very short listing may well be appropriate.

(iii)Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days.This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one-off problem that may subside in weeks rather than months.

(iv)The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.

(v)Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.

(vi)The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.

(vii)If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6Experience suggests that in certain types of case, for example, non-molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.

(i)When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re-service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard. 

(ii)If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:

(a)Paragraphs 5(i),(iii)-(v) must be complied with in relation to the new order and the new order will need to be served.

(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in theapplication or in the initial order, (a) the new order must specify a new return day, and (b) paragraph5(ii)must be complied with in relation to the new order.

7  I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subjectmatter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:

(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or

(b) there is a real risk that, if alerted to what is proposed, if 'tipped off', the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice.  In an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings.

8  Nothing in this Guidance derogates from, or otherwise modifies, the principles and safeguards to be observed on an application for an ex parte (without notice) freezing or search order: see L v K (Freezing Orders: Principles and Safeguards) [2013] EWHC 1735 (Fam), [2014] Fam 35.”

This is a very welcome re-clarificaiton of the principles in his 2014 Practice Guidance. There still appears to be much confusion as to whether Practice Guidance need to be complied with or not. There is considerable case law, which supports that they do. For a helpful discussion on this issue see Re W (Minors)[2016] EWHC 2226.

It would appear that the principle reason for this latest Practice Guidance is as a result of wholesale misunderstanding or non-compliance of the 2014 Practice Guidance. It will be interesting to see whether both practitioners and the judiciary comply this with.

Jason M Hadden

Barrister at St Ives Chambers

Comment

The Red Book, the Judiciary and the issue with non-molestation orders

4 Comments

The Red Book, the Judiciary and the issue with non-molestation orders

For a family lawyer the Red Book is nothing less than a friend, a guide and indeed as is often the case when in court, asaviour. So it is of particular interest when a senior member of the judiciary, namely Mr Justice Mostyn takes issues with its content, particularly on the topic of non-molestation orders

Non-molestation orders from a legal perspective are big business. Earlier this year figures from the Ministry of Justice confirmed that the number of non-molestation orders issued by the courts to protect people from harassment, intimidation or violence had increased by 21 per cent, from 4,925 to 6,101, between 2012 and 2014 in England and Wales. This comes as no surprise, as following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013 the scope of services funded as part of civil legal aid radically changed. Legal aid in private law disputes has all but ceased which we know to our cost, save for where there are issues concerning domestic violence or child abuse and specific evidence fulfilling the requirements of regulation 33 or 34 of the Procedure Regulations is provided in support of this. As a consequence non-molestationorders are also the entry point for a legal application in Children Act proceedings.

The background

A non-molestation application is usually an ex parte (without notice) application to the court. It had become the practice, and to a great extent I think it still is, that at that hearing the court would make non molestation orders for a period of up to one yearor indeed unlimited periods and include a provision in the order for it to be “considered at a further hearing on a date to be fixed by the court officer on request by the respondent”. The onus being on the respondent, to bring the matter back to court if they took issue.

This however flies in the face both of natural justice and the guidance given by the President on 13 October 2014, in Practice Guidance: Family Court – Duration of Ex Parte (Without Notice) Orders where he confirmed that the practice of granting such orders for an unlimited time must stop. He reiterated that the law is set out in Horgan v Horgan [2002] EWCA Civ 1371, paras 5-6 (Ward LJ),R (Casey) v Restormel Borough Council [2007] EWHC 2554(Admin),paras 37-41 (Munby J), in Re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ), and JM v CZ [2014] EWHC 1125 (Fam), paras 5-13 (Mostyn J).

The relevant principles as set out by the President, “compliance with which is essential, are as follows:

 (5)(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.

(ii) It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 4.30pm on 19 November 2014).

(iii) The duration of the order should not normally exceed 14 days.

(iv) The order must also specify the date, time and place of the hearing on the return day. It is usually convenient for this date to coincide with the expiry date of the order (eg, list the return day for 10.30am on 19 November 2014 and specify that the order expires at 4.30pm on 19 November 2014).

(v) The order (see FPR 18.10(3)) "must contain a statement of the right to make an application to set aside or vary the order under rule 18.11." The phrase "liberty to apply on 24 hours' notice" is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply on notice (the details of which and the need for which must be set out on the face of the order) to set aside or vary the order.

(vi) If the respondent does apply to set aside or vary the order the court must list the application as a matter or urgency, within a matter of days at most.”

The reality appears that courts and practitioners up and down the land are simply not following this clear and cogent Guidance. This thus bring us to Mostyn J, in Re W (Minors)[2016] EWHC 2226and the note which prefaces the Guidance in the 2016 edition of the Family Court Practice (“the Red Book”) and to which he describes at para 10 of his judgment as “intemperate, disrespectful and legally wrong” and that “in effect incites the lower judiciary to ignore the Guidance and continue with the bad practices that the Guidance was intended to eradicate”.

 

So what does it say in the Red Book?

The Editorial Note in the Red Book (page 2681) states that the President’s Guidance has been criticized as unworkable in practice, imposing increased work and expense on practitioners and staff at HMCTS and increased expense on public funds, while reducing protection for victims of domestic violence. That unusually, the Judicial College has declined to promote it and it is understood that a majority of DGJs are not supporting it. It goes on to state that whilst (5)(i),(ii),(v) and (vi) are clearly correct and consistent with the longstanding commentary in this work, the difficulty is with paras 5(iii) and (iv). The problem being that if you are only granting he order for 14 days you are going to clog up the courts still more than now; the expense on the applicant (and/or public purse) of further person service on the respondent and the potential risk of leaving the applicant without protection between hearings. The Note concludes that Guidance needs to be amended particularly as the Notes says “that there is nothing wrong in law with an ex parte order that lasts 6 or 12 months provided that in all cases a full hearing is held as quickly as possible to review the order.”

As we have seen above Mostyn J takes a rather different view as to the workability of the Practice Guidance, confirming that he considers

“it to be eminently workable in practice. More importantly, I believe that it fairly balances the necessary need for protection for victims of domestic violence with the fundamental right of a litigant to be heard in a case whichconcerns him. The editorial note implicitly asserts that the specification of the normal duration of an ex parte order as 14 days in para.5 (iii) of the Guidance is ultra vires.  It states that there is no statute or rule requiring it.  That is true but it should be understood that the specification, as well as the guidance generally, derives from authorities of the Court of Appeal and the High Court.  It is for the higher courts to give guidance as to the interpretation of statutes and it is certainly within the remit of the higher courts to specify how a discretionary power in a statute is normally to be exercised.  And when the higher courts give such guidance in a decision, then that is binding on the lower courts - see the decision of the Supreme Court in Willers v Joyce No. 2 [2016] 3 WLR 534 at para.5.  Of course the normal specification of 14 days can be departed from, perhaps by a fairly long period, if the facts of the case warrant such a departure; but where the higher courts have specified a normal starting point of 14 days then that is where the lower court should start.”

He reiterated that

“In my judgment, the lower courts must faithfully adhere to the guidance until and unless it is amended by the President.  No doubt representations can be made to him by the Association of Her Majesty's District Judges, but until the Guidance is altered it must be followed.”

So where does this leave us? The Practice Guidance must be followed unless and until it is amended. A non molestation order is a draconian order which often curtails the rights of a person at a hearing where they are not in attendance and as such should be for as short a period as possible and 14 days makes sense. But inreality this is not always practical. I agree with the Editorial Note.The court system is in a mess. Too many cases; litigants in person; insufficient resources and a system creaking at the seams. The protection of the victim from a risk of domestic violence must be added to the mix and on balance the current practice of longer orders makes sense.

As such the lower judiciary should rather, than simply completing a tick box form when making non-molestation orders shall have to consider giving short judgments explaining why this case deserves a longer order in the specific circumstances of this case. This then may appease both Mostyn J and the Author of the Editorial Note.

4 Comments

Does a McKenzie Friend have many real friends in the legal profession?

1 Comment

Does a McKenzie Friend have many real friends in the legal profession?

With government statistics confirming that in 34% of private law disputes neither party has the benefit of legal representation from either a barrister or a solicitor it is perhaps of no surprise that more litigants are relying on a McKenzie Friend.

The term McKenzie Friend derives from the case of McKenzie v McKenzie [1970] 3 WLR 472. It was a defended divorce case in which the husband sought to be assisted by his friend, a young Australian barrister who,whilst not qualified within the UK, was proposing to offer the husband support and some prompting on appropriate questions to ask the wife on a pro bono basis. The judge was less than impressed. The husband subsequently appealed. The Court of Appeal upheld the appeal confirming that every party had the right to have a friend present in court to provide a form of support.

As such a McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, providing moral support, helping to organise the documents, and on occasions whispering advice to the litigant. He or she is not an advocate and has no formal right of audience. A McKenzie Friend, and here is the real rub, works under no compulsory code of practice, is unregulated, does not have professional indemnity insurance and is rarely legally qualified.

It is perhaps helpful to remind ourselves of the Practice Guidance: McKenzie Friends (Civil and Family Courts) issued in July 2010 by the Master of the Rolls and the President of the Family Division. It confirms that the role of a McKenzie Friend is notto :

i) act as the litigant’s agent in relation to the proceedings;

ii) manage litigant’s cases outside court, for example by signing court documents; or

iii) address the court, make oral submissions or examine witnesses.

Whilst the litigant ordinarily has the right to receive reasonable assistance from a McKenzie Friend, the court retains the power to grant or refuse such assistance after being satisfied that it is in the interest of justice and fairness that such assistance is required (or not as the case may be).

It is for the litigant to tell the court that they require such assistance and the proposed McKenzie Friend should produce a short CV or other statement setting out relevant experience (I should point out because I have seen it in a CV recently, that this does not need to reference a swimming certificate, as impressive as this may be) and confirming that they have no interest in the case, understand their role and the duty of confidentiality.

Where there is an objection to the presence or assistance of a McKenzie Friend it is for the court or the objecting party to provide sufficient reasons why the litigant should not receive such assistance. This would then engage the right to a fair trial. The litigant should be given a reasonable opportunity to argue their point and the McKenzie Friend should normally be able to assist and support the litigant in that argument. But it remains the case that it is for the litigant to make the argument.

The simple fact is that McKenzie Friends do not have a right of audience or a right to conduct litigation. It remains a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to so by an appropriate regulatory body, or the court grants such authority which would be purely on a case-by-case basis.

The Practice Guidance reminds us that courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to a McKenzie Friend. It is after all solicitors, barristers and legal executives who are properly trained, have obtainedprofessional qualifications, have professional indemnity insurance and have an overriding duty to the court.

Where the McKenzie Friend seeks a right of audience it is for the litigant, not the McKenzie Friend to persuade the court that in the interest of justice they should be granted rights of audience. The grant of a right of audience or indeed a right to conduct litigation will only be granted in exceptional circumstances, for all of the obvious reasons set out above. Interestingly you might think that if the litigant can successfully make such an argument he probably does not require the McKenzie Friend to speak on his behalf in any event. It is also worth remembering that rights of audience and the right to conduct litigation are separate rights, which would need to be applied for both individually and justified separately.

What has also caused much consternation over recent years has been the fact that many McKenzie Friends are also charging for their services. Litigants can enter into lawful agreements to pay fees for McKenzie Friends(despite the fact that the industry remains unregulated)for their assistance at court, this can include preparation, clerical duties, photocopying and indeed the provision of legal advice in connection with court proceedings. Such fees cannot, however, be claimed against the other party.

A party is, however, risk of meeting the MckenzieFriend’s costs where such costs have been incurred after the grantof a right of audience. In principle they are thena recoverable disbursement under CPR 48.6(2) and 48(6)(3)(ii).

With more and more McKenzie Friends appearing on behalf of the litigants it is vital that advocates and indeed the courts, are familiar with this Practice Guidance. This is particularly the case where the actions of McKenzie Friends are coming under increased scrutiny.

Last week a paid McKenzie Friend, David Bright, was jailed and sentenced to 12 months in prison for the perverting the course of justice in a family court case. Mr Bright submitted a psychological report during the proceedings, which had in fact been prepared by his colleague and partner Miss Mann, who falsely claimed tobe a clinical psychologist. This bogus report caused enormous distress. Not only did this cause one of the parents both financial difficulties but he also lost contact with his children as a result.

This type of behaviour is deeply concerning. It wouldhowever be completely unfair to label all McKenzie Friends with the same brush. Many offer invaluable time and assistance to litigants. The problem seems to be the issue of McKenzie Friends being able to charge a fee. This implies, in my view, that they are something whichthey are not. They are attending court to offer support and comfort. They remain non-professionals. They are not lawyers. Whilst they continue to be able to charge fees, I wonder whose friends they actually are.

 

1 Comment

Re B: A Fair Trial for Litigants in Person in the Family Court

1 Comment

Re B: A Fair Trial for Litigants in Person in the Family Court

Barely a week goes by without lawyers reflecting on the impact of the surge in the number of litigants in person (LIPs) on the court system. In October 2016 government statistics confirmed that in 34% of private law disputes neither party are represented by either solicitor or counsel; the highest rate since legal aid was removed from the majority of such cases. This week we have Mr Justice Peter Jackson’s judgment in Re B (Litigants in person: timely service of documents) [2016] EWHC 2365 (Fam) where counsel was criticised, and an adjournment allowed, for serving a position statement on a LIP on the day of the hearing.

The case concerned a mother who wrongly removed a teenager from a convention country to England in February 2016. Father launched Hague Convention proceedings which the mother defended on the basis that the child objected to the return. At a directions appointment in May 2016 where the father was represented by counsel and the mother appeared as a LIP without an interpreter, standard directions were given for the final hearing. No specific direction was given for timely service of documents on the mother.

On the morning of the hearing counsel for father provided the court with his position statement (14 pages) and four law reports (100 pages). He had also filed these the night before by email apologising for their lateness. Mother, who was again unrepresented, was provided with these documents at court for the first time. She was assisted in reading them (or attempting to read them) with a court appointed interpreter.

In a judgment, published with the approval of the President of the Family Division, Mr Justice Peter Jackson consequently admonished father’s counsel for the late service of such documents and concluded that

where one party is represented and the other is a LIP, the court should direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email should be specified. Where time permits, the courts should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.”

The reality is that LIPs frequently appear in child abduction cases where applicants are entitled to unconditional legal aid, while legal aid for respondents is means and merits based. Holman J considered the issue in PH v AH [2016] EWHC 1131 (Fam) where it thought it was

“grave, if not scandalous, that in applications under the Hague Convention non means tested publicly funded legal aid is automatically made available for applicants, but not for respondents. It is indeed difficult for respondents to obtain legal aid in relation to these cases, and increasingly they appear in person. I regard that as highly undesirable, and indeed a denial of the essential ingredient of a fair trial of equality of arms. But that is the position that has now been reached in this country…One simply cannot go on and on and on adjourning applications under the Hague Convention on the off chance that at some later date a respondent parent may obtain some form of legal aid or legal representation.

Whichever political party is running the government there seems little enthusiasm or indeed appetite to change the rules on legal aid.

So what does PD 27A say?

‘PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:

  • The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing
  • Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing
  • The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing
  • The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that.’

These rules have been around for a while now but there seems to be little compliance. Solicitors are already struggling with their workload and it remains rare (although it happened in this case) for counsel to get the papers more than a day before a hearing.

Mr Justice Peter Jackson confirmed that the position statement was “of real assistance to the court”. Position statements can give a hearing a very helpful steer both as to the practicalities of a case and the applicable law. However many advocates will now have to think twice about drafting a position statement if they are against a LIP where there could now be a risk of an adjournment and the reality of wasted costs for their client. Also, who would pick up the cost (not to mention the time constraint) of having such a document translated? It may work where one party has legal aid (although prior authority may still be required for the translation of such documents), but if one party is already struggling to pay for legal representation, adjournments and additional disbursements often become crippling.

I think this case has wider importance. It is not uncommon for authors of s.7 reports to file them on the morning of trial. Sometimes by design, for example to fit within a tight court deadline (“the s. 7 author to file and serve on the morning of the final hearing”). On occasions simply through lateness or some other such reason. If one party (or indeed both) are LIPs faced with a s.7 report on the day of trial then isn’t this inherently unfair? Particularly where Mr Justice Peter Jackson confirms that:

‘It might be added that late service of documents further weakens the position of LiPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be familiar with the system and the language.’

Timing will have to be carefully considered. Advocates and courts will have to be very conscious to ensure that compliance with PD27A becomes the norm rather than the exception. With the courts already creaking under the number of new cases and the time it takes for resolution, will we now be facing a fresh wave of adjournments to guarantee, as we must, a right to a fair trial?

To assist litigants in person in the family courts I have co-written a book on How to Represent Yourself in the Family Court

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