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A warning that court criticism and the resulting penalties may be imposed when unnecessary private law claims are made in family court.
The judgment stems from an appeal successfully allowed by HHJ Wildblood QC. This judgment does not deal with the appeal on the merits itself, which was the subject of a separate judgment. [2]. This published judgment was rendered by HHJ Wildblood QC following this appeal, to warn the parties and lawyers against unnecessary requests for private law children.
The case on the merits concerned a successful appeal by a mother against a disclosure order made by legal counsel under delegated powers under FPR 2010 PD 2C and RPF 2010 r.4.1 (3) (b). When the child in question was not yet 2 years old and disclosure had already been ordered for: (i) the files of two local authorities for a period of five years; and (ii) Police disclosure for a period of 5 years. The mother had agreed that she had not visited the doctor for any of the incidents alleged in the proceedings on the merits except one. She was prepared to release her medical records from the date she said the incident occurred. [5]. Legal counsel ordered the disclosure of five years of medical records relating to the mother [1]. Mother appealed. HHJ Wildblood QC found that the order for disclosure of medical records was unnecessarily and disproportionately infringing M’s right to privacy. [2].
The judge issued this judgment to highlight how full the judicial lists are with provisional private law hearings that should not require court intervention. [3]. He estimated his court would have double the number of private law cases pending in January 2021 than it had in January 2020 [3]. He observed “Not only unnecessary litigation is unnecessary. It obstructs already overcrowded lists – in terms of an overarching objective, it is an inappropriate use of limited judicial resources (see Rule 1.2 (e) of the 2010 Family Rules of Procedure)‘ [3].
The judge said he did not claim to give guidance on the issues he raised and that it was not his responsibility to do so. [4]. However, as DFJ for the region, he said he was aware of the time that unnecessary litigation of this nature takes. [4].
HHJ Wildblood QC continues:
‘[6] The judges of this court have an unprecedented workload. We want to provide members of the public with the legal services they deserve and need. However, if our lists are cluttered with this type of unnecessary and high-conflict private law litigation, we will not be able to do it.
…
[9] Therefore, the message of this judgment to the parties and to the lawyers is as follows, as far as I am concerned. Do not take your private law dispute to family court here unless it is really necessary for you. You should settle your disputes (or those of your clients) outside of court, unless this is not possible. If you bring unnecessary cases to this court, you will be criticized and penalties may be imposed. There are many other ways to resolve disputes, such as mediation.
Summarized by Bethany scarsbrook, lawyer Saint-Jean rooms
This judgment was rendered in private. The judge authorized the publication of this version of the judgment provided that (regardless of what is contained in the judgment) in any published version of the judgment the anonymity of the child and family members is strictly maintained. All persons, including representatives of the media, must ensure that this condition is strictly observed. Failure to do so will be contempt of court
Case number: BS20F01075 / BS20P01076
AT THE FAMILY COURT IN BRISTOL
2 Redcliff Street,
Bristol.
BS1 6GR
09/25/2020
Before :
HIS HONOR JUSTICE WILDBLOOD QC
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Re B (a child) (Unnecessary private law requests)
____________________
The names of lawyers and notaries are omitted
Hearing dates: 25e September 2020
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HTML VERSION OF THE JUDGMENT
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Crown Copyright ©
HHJ Wildblood QC::
1. In error and, no doubt, under intense pressure from a busy court list, legal counsel issued an unnecessary and disproportionate order for the disclosure of five years of medical records relating to a mother in connection with ‘a private law procedure. The legal counsel was acting under the authority delegated to him by Practice Direction 2C and Rule 4.1 (3) (b) of the Family Procedure Rules 2010. The child involved in the proceedings is not yet two years old.
2. I release this judgment for publication not because of any legal point relating to the disclosure of medical records – I have dealt with this separately in a much longer judgment. I have concluded that, as it stands, the order for the disclosure of medical records was unnecessarily and disproportionately infringing the mother’s right to privacy.
3. I publish this judgment to underline the extent to which the judicial lists are filled by provisional private law hearings which should not require the intervention of the court. By January 2021, we predict that in this court we will have double the number of private law cases pending we had in January 2020. We already have more than 1 ½ times the number of such cases since January 2020. There is a similar position. with regard to requests for public law orders (for example, requests for care orders). Therefore, not only unnecessary litigation is a waste. It clogs up already crowded lists – in terms of an overarching objective, it is an inappropriate use of limited judicial resources (see Rule 1.2 (e) of the 2010 Family Rules of Procedure).
4. I do not pretend to give advice on the issues I am raising. It is not for me to do that. However, as the designated family judge for this area, I know how much time is taken by unnecessary litigation of this nature. I also know that in giving this message, I have the support of all judges (including magistrates) who sit in Family Court in this area. The message we want to get across is that this type of dispute should only be taken to court when it is really necessary. This is particularly the case when it comes to lawyers, since they can be expected to divert their clients from the court, unless the necessity requires otherwise.
5. I now wish to put the issue in this appeal into perspective:
i) The request for disclosure of medical records should be viewed in the context of production orders for records held by two local authorities and the police over a five-year period. The court will therefore have a great deal of information.
ii) The order for the disclosure of the mother’s medical record must also be considered in the context of a case where it is accepted that the child concerned would live with the mother and have contact with the father (the case of the mother ) or divide his time between the parents (the father’s case). So, whatever case ultimately prevails, the child will spend a lot of time with the mother. The mother says she did not see the doctor for any of the incidents she is alleging except one, and she is ready to release the medical records as of the date she says that the incident has occurred.
iii) Both parties were represented by lawyers and experienced lawyers.
iv) The hearing lists for this court are full of work. I am fully listed until mid-March and I have announcements until June. My colleagues’ lists are the same.
v) This call took me 3 ½ hours to prepare. I must have read a complete skeleton of arguments on the very simple question at hand. I was referred to ten judicial authorities (some being national authorities and others being Convention cases) and several family procedural rules 2010. The appeal was registered for two hours and was assisted by lawyers for both parties. Another judge gave directions on the appeal on paper. Therefore, this call took a long time.
vi) The cost of this appeal is in the thousands of pounds. The tribunal (including myself) is publicly funded. The mother is legally assisted and her legal costs are therefore paid from public funds. The father financed his own lawyer and lawyer.
6. The judges of this court have an unprecedented workload. We want to provide members of the public with the legal services they deserve and need. However, if our lists are cluttered with this type of unnecessary and high-conflict private law litigation, we will not be able to do it.
7. To further explain the problem, I give these examples of similar requests for micromanagement that have arisen before me over the past month: i) At which junction of M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in case it is not suggested that either parent should hold the children out of jurisdiction? iii) How should contact be organized to take place on a Sunday afternoon? Other judges have given me many other similar examples.
8. I accept that it is not the fault of the parties or the lawyers that legal counsel has been persuaded to make an incorrect order. However, if common sense had prevailed, it would not have been necessary for legal counsel to decide the issue and, in the face of the erroneous order, common sense could have resulted in this appeal being quashed.
9. Consequently, the message of this judgment to the parties and to the lawyers is as follows, as far as I am concerned. Do not take your private law dispute to family court here unless it is really necessary for you. You should settle your disputes (or those of your clients) outside of court, unless this is not possible. If you bring unnecessary cases to this court, you will be criticized and penalties may be imposed. There are many other ways to resolve disputes, such as mediation.
HHJ Stephen Wildblood QC
25e September 2020
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