Sitting at BRISTOL
Strand, London, WC2A 2LL
B e f o r e :
|Re W (Children)|
Crown Copyright ©
Sir James Munby, President of the Family Division :
"50 That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see In re S (A Child) (Family Division: Without Notice Orders)  1 WLR 211,  1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.
51 I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see In re W (A Child) (Care Proceedings: Court's Function)  EWCA Civ 1227,  1 WLR 1611, para 74.
52 The law is clear. As Romer LJ said in Hadkinson v Hadkinson  P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson  AC 97, 101:
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."
For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.
53 Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.
54 Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority."
"The conduct of the parties in this matter and the wholesale failure to comply with case management directions is lamentable. Family practitioners must wake up to the fact that, whatever the difficulties presented by public funding issues and/or the pressure of work, the court will no longer tolerate the failure of parties to comply timeously with court orders. Those failures simply lead to unacceptable delays in the proceedings which are wholly inimical to the welfare of the children involved."
I agree with every word of that.
"There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking."
Again, I agree with every word of that.
"8 I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing.
9 I shall direct that there is a transcript of this judgment. It will be anonymised and published. I give leave for it to be reported. All parties will be anonymised save for the London Borough of Bexley. The London Borough of Bexley will pay for the cost of that transcript."
"The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge's clerk."
I note in passing that in each case, as and when the various position statements did come in, they were sent to the court and not, as required, also sent by email to my clerk. Lest any pedant seeks to take the point that I am not a judge of the High Court, may I make it clear that this requirement applies as much to hearings before the President of the Family Division as to any other judge of the Family Division.
"Unless the court has given some other direction or paragraph 7.5 applies" – this relates to hearings listed before a bench of magistrates – "only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses."
Bristol City Council had lodged a duplicate bundle, marked 'Witness Bundle', and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
"In accordance with … the order of His Honour Judge Rutherford dated 6 February 2014, there was an advocates meeting on 21st May 2014 …
I am told, and it is clear from the e-mails that I have read, that the guardian suggested at the advocates meeting that there should be a family meeting to discuss the family support that would be available to the mother … should one or more of the children return home. All parties agreed with this proposal.
On the basis that it was unlikely that the family meeting would take place before 6th June 2014 which was the deadline for the local authority's final evidence and bearing in mind also the potential impact of the family meeting on the local authority's final evidence, there was then some discussion about the timetabling directions which had been made by HHJ Rutherford at the hearing on 6 February 2014.
I understand that it was agreed and accepted at the advocates meeting that it was unlikely that the local authority's final evidence would be filed by 6 June 2014, as directed and I can see from subsequent e-mails that once the family meeting was fixed for Wednesday 17th June 2014, the parties – or at least some of the parties – agreed that the local authority's final evidence would be filed on Friday 20th June 2014."
" … the late filing was a combination of agreement between the parties – moving the date from 6th to 20th June to accommodate the family meeting and then sick leave on the part of the lawyer and pressure of work on the part of the social worker – agreeing to file on the 20th but not filing until the 24th.
Unfortunately, as far as I can see from our records, we completely failed to inform the Court, and to seek the Court's approval, of the agreement made at and following the advocates meeting on 21st May. As a consequence I think of this first failure, we then failed to inform the Court, of our problems with filing by 20th June, in accordance with the terms of the agreement.
As one of the team leaders in the team and the line manager for the lawyer with case responsibility, I apologise unreservedly for these failures. I am writing now to the team lawyers and legal assistants to remind them of the need to inform the court and seek the court's approval in every case and for whatever reason we fail to comply with the court's directions."
"(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).
(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date."
There is no such provision in the Family Procedure Rules, and for good reason. Indeed, such agreements are forbidden by FPR 4.5(3):
"Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties."
In accordance with and deriving from the court's powers under FPR 12.24, the standard form of case management order, use of which is mandatory, spells out (as did Judge Rutherford's order in this case) the consequence of failure to comply, namely the obligation on every party to "immediately inform the Court if any party or person fails to comply with any part of this order."