Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44

This judgment warns of the possibility of criticisms and sanctions being imposed should unnecessary private law children applications be made.

The judgment follows a successful appeal in the Family Court at Bristol against an order made by a legal adviser, acting under powers delegated to her by Practice Direction 2C and Rule 4.1(3)(b) of The Family Procedure Rules 2010, for the disclosure of five years' worth of medical records relating to a mother in private law proceedings.

HHJ Wildblood QC considered the order for disclosure “unnecessarily and disproportionately invasive of the mother's right to respect for her private life” and highlights “the extent to which court lists are being filled by interim private law hearings that should not require court involvement.”

It was accepted in this case that the child involved, who was nearly 2 years of age, would either live with the mother and have contact with the father or would share his time between both parents. There were already orders for records held by two local authorities and police disclosure covering a five year period. Whilst HHJ Wildblood QC accepts that it is through no fault of the parties or the lawyers that the legal adviser was persuaded to make the order, he goes on to say that “if common sense had prevailed, it would not have been necessary for the legal adviser to determine the issue at all and, when faced with the erroneous order, common sense could have led to the avoidance of this appeal.”

HHJ Wildblood QC was not pretending to give any guidance on the issues raised within his judgment but, as the Designated Family Judge for the area, he knows “how much time is being taken up by unnecessary litigation of this nature”. He says at paragraph 4 of the judgment:

“I also know that, in giving this message, I have the backing of all judges (including magistrates) who sit in the Family court in this area. The message that we wish to give is that this type of litigation should only come before a court where it is genuinely necessary. That is especially so where lawyers are involved, since they can be expected to steer their clients away from court except where necessity otherwise demands.”

At paragraph 7 of the judgment, the Judge gives the following examples of “similar requests for micro-management that have arisen” before him:

  1. At which junction of the M4 should a child be handed over for contact?
  2. 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?
  3. How should contact be arranged to take place on a Sunday afternoon?

The Judge concludes at paragraph 9:

[9]. Therefore, 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.

This judgment sends a message to lawyers and parties against the making of unnecessary private law children applications, the possibility of criticisms and sanctions being imposed should you do so and a reminder to settle away from court unless it is not possible to do so. The judgment also serves as a further reminder that the Family Courts have an “unprecedented amount of work”.