Don't Waste My Time: There are (almost) always alternatives to going to Court

It is never pleasant when a Judge criticises you in Court, particularly in front of your client and the other side and their legal team. Even if, as a solicitor, you have the cushion of a barrister taking the brunt of the punishment it is an experience to be avoided if at all possible. It must have been an uncomfortable day in Court for those representing the parties in Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44.  The matter was considered by His Honour Judge Wildblood QC who was considering a appeal of a decision made by a Legal Adviser for disclosure of 5 years worth of medical records of the mother. HHJ Wildblood QC was quick to clarify that the publication of his judgment was not related to the legal issues of the appeal but rather "to highlight the extent to which court lists are being filled by interim private law hearing that should not require court involvement."

Some reminders:

• A private law case is one which is brought by a private individual, usually a parent of the child in question, whereas a public law case is one involving a local authority, for example, an application for a care order.
• An interim hearing is a hearing listed prior to the final hearing or conclusion of a matter, usually to address an issue that needs to be resolved before the matter can proceed, for example, disclosure of evidence (as in this case).

It is often said that going to Court is a last resort and every effort will be made to resolve matters by agreement.  That can be difficult in cases where there is high conflict or emotion and where any concession can feel like admitting defeat.  HHJ Wildblood QC, however, is making it absolutely clear that certain matters should always be resolved outside of Court and to do otherwise amounts to "an inappropriate use of limited court resources" (paragraph 3 of the judgement) which is contrary to the overriding objective set out in Rule 1 of the Family Procedure Rules 2010. The Judge helpfully gave the following examples of matters which would count as inappropriate applications:

1. At which junction of the M4 should a child be handed over for contact?
2. Which parent should hold the children's passport?
3. How should contact be arranged on a Sunday afternoon?

The Judge stated that those representing parties must steer their client away from bringing such disputes to Court and said that if such matters were litigated then "criticism and sanctions" may follow.

It is clear that everything must be done to try and keep such disputes out of Court including making the consequences of taking the matter before a judge clear to the parties. But what about those cases where even the smallest of issues is impossible to resolve without a third party stepping in to assist? Well there are alternatives and it is important to consider them particularly in light of this recent judicial warning. If negotiations are not working then mediation can be a helpful tool and HHJ Wildblood QC references this towards the end of his judgment. But mediation is not always appropriate particular if there have been allegations of domestic abuse. Another option is arbitration. 

Arbitration involves a third party selected by the parties (usually a practising barrister or judge) who will consider the issues and make a binding decision. Arbitration can be used to resolve all matters in dispute it should not be forgotten that smaller issues, such as those complained of by HHJ Wildblood QC can also be resolved through arbitration. The parties are in control of the process and it may even be possible to have the matter resolved without the need to attend a hearing. Whilst the parties will have to meet the cost of the arbitrator, considering the possible costs of a court hearing (in Re B the costs ran to thousands of pounds) it could be a more cost effective process and will certainly be a quicker way of reaching an outcome which would allow the matter to proceed and avoid taking up precious Court resources.

It would therefore be prudent to keep Re B in mind when considering whether to take an interim matter to court in private law proceedings as, not only are you likely to be criticised by the judge, but there could be a lot more lost than simply your client's preferred junction of the M4 for handovers.

What are your thoughts? 

A way with words: The language of family law

The words we use are important. This is especially so in the world of family law.

The interpretation and meaning attributed to certain words can influence the outcome of a specific case as well as how the law is understood by the public and implemented generally by the judiciary.

Words can be tricky. This is one of the reasons why we have rules for interpreting statute so that the Courts are not held to the strict ‘letter of the law’ if the result would be absurd or clearly not what was intended by Parliament. Some words are more important than others and, as the law and society evolve, so too does the language of the law.

People’s understanding of words used in family law can be influenced by similar language from other jurisdictions. This can lead to confusion about rights in this country particularly when engaging in legal proceedings. The problem can be compounded when these terms are mis-used in the press and media.

Below are a few examples of the importance of certain terms in family law and how sometimes they are not used correctly.

CUSTODY

Many people talk about ‘custody’ when they discuss matters relating to children. They say “I want to have full custody of my children” or “I’m in a custody battle with my ex.” Yet the word custody is not part of family law in England and Wales. It was removed in 1991 because it was considered that the term conveyed a possessive, parent focussed message that gave the impression that one parent, the parent with custody, was in some way more important than the other. Custody was initially replaced the terms ‘residence’ to describe with whom the child would live with and ‘contact’ to describe the time that child spent with the non-resident parent.  These terms themselves eventually became subject to similar scrutiny and criticism.

The current terminology, set out in Section 8 of the Children Act 1989, refers to ‘child arrangements’ which can be broken down into ‘lives with’ orders and ‘spends time with’ orders. This language puts the focus very firmly on the child which is certainly a positive development. In addition, a child arrangements order can specify that a child ‘lives with’ both parents removing the perception that one parent has achieved a greater status which can create conflict. This could be appropriate when, for example, there is a shared care arrangement where the child spends a significant amount of time with each parent.

PRIMARY CARER

The term primary carer in children proceedings is used to describe a parent who undertakes the majority of care. It can be problematic with parents vying for this coveted status even before separation as they believe that it will give them the upper hand in any dispute. They may think that the ‘primary carer’ will be viewed more favourably by the courts and this will ensure that they will have control over the child and the time they spend with the other parent. It can sadly be perceived as leverage in financial disputes.  Witness statements can include detail about how involved that parent is in a child’s day to day routine and, conversely, how limited the role of the other parent has been.  This approach creates conflict, with parents fighting about who comes out on top rather than on what is best for the child going forward. It would seem that ‘primary carer’ may have become the new ‘custody’.

Such an approach is not child focussed.  The focus of the parents should be on what arrangements will best meet the needs of a child going forward. This could be very different from the status quo during the relationship. The court is obliged to start with the assumption that it will benefit a child if both parents play a meaningful role in that child’s life and so an arrangement which significantly limits the role of one parent is unlikely to be approved unless there is a good reason for this. This means that parents may have to accept that compromises will need to be made life after separation may look very different.  It may be that, for some families, there will be no ‘primary carer’.

JOINT LIVES

A ‘joint lives spousal maintenance’ order is where one spouse must make periodical payments to the other until one of them passes away. It is an order which the court can make in financial remedy proceedings. Such orders used to be more common although these days they are becoming much harder to justify with the focus shifting to encouraging financial independence within a specified time-frame and thus achieving a clean break.

The term can be deceptive. This is because it can be varied and, in fact, the expectation that that spouse will strive to achieve financial independence remains even if such an order is made. In reality, there will be very few cases that justify a true ‘joint lives’ order being made. Those will be cases where the court can say with certainly that the receiving party has no chance of achieving financial independence in the future.

A joint lives order can also be made when there is too much uncertainty as to when a spouse may achieve financial independence. It is, however, important to remember that the expectation is still there and, if a party does not take sufficient steps to increase their earning capacity then they could find themselves in financial difficulty if their former spouse applies for the payments to be brought to an end. It these circumstances, might it be better to refer to an ‘indefinite’ order rather than a ‘joint lives order.’

COMMON LAW WIFE/HUSBAND/MARRIAGE

There is no concept of ‘common law marriage’ in the law of England and Wales.  If you hear this term being used then it is wrong.  If you are using this phrase then please stop! It perpetuates a myth that someone is entitled to something they are not and can leave people in a dire financial position if their relationship ends. Whilst there are still powers for the Court to make financial orders in limited circumstances, there is no codified regime of cohabitee rights akin to that available on marital breakdown.

Further thoughts:

·         Do you agree with the above?

·         Are there any other family law terms which you consider are being misunderstood or should be reviewed?