Unnecessary Private Law Applications

HHJ Wildblood QC warns that there may be sanctions imposed and criticism from the court if a private law application is made that does not truly require court involvement. The Judge’s warnings came in a succinct published judgment in Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44 handed down in September 2020.

The case concerned an appeal brought by the mother against a disclosure order made by a Legal Advisor. The order was made for five years’ worth of disclosure of the mother’s medical records. HHJ Wildblood QC found that disclosure of medical records was “unnecessarily and disproportionately” invasive of the mother’s right to respect for her private life. Disclosure had already been ordered for five years’ worth of records from two Local Authorities and Police Disclosure for the same period. The subject child was not yet 2 years old.

In his judgment, the Judge made several remarks warning both parties and lawyers that unnecessary private law cases had been taking up the court’s limited time.

In his judgment, HHJ Wildblood QC, said:

“[6] 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.

[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.”

The Judge, at paragraph 7, gave further examples of cases which involved ‘similar requests for micro-management’ where unnecessary applications had been made:

“[7] To further explain the problem, I give these examples of similar requests for micro-management that have arisen before me in the past month: i) At which junction of the M4 should a child be handed over for contact? ii) 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) iii) How should contact be arranged to take place on a Sunday afternoon? Other judges have given me many other, similar examples.”

HHJ Wildblood QC granted the mother’s appeal. With the Local Authority records and police records to be produced, there was already a ‘large amount of information available to the court’. The addition of the mother’s medical records was ‘disproportionate’. The Judge emphasises that it is ‘no fault of the parties or of the lawyers’ that the legal advisor was persuaded to make such a decision but hopes that common sense should prevail to avoid appeals like this in the future.

The judgment highlights the current backlog in the system and the ‘unprecedented amount of work’ family judges and practitioners are juggling at the moment. The Judge estimated that his Court would have ‘double the number of outstanding private law cases by January 2021 that it saw in January 2020.’ The Judge reminded parties and lawyers that this type of litigation should only come before a court where it is ‘genuinely necessary’.

For an appointment with Sophia, or If you require advice or assistance with a family case, contact Mavis on 020 8885 7986.

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