England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		30 September 2016

J U D G M E N T
 


Mr Justice Peter Jackson:

1. This judgment, published with the approval of the President of the Family Division, arises from a recent final hearing in a child abduction case in which legal documents – counsel's position statement (14 pages) and four law reports (100 pages) – were given at the door of the court to a non-English-speaking litigant in person (LIP). This is unfortunately not an unusual occurrence, and it calls for a remedy.

Summary

2. Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.

Reason

3. It is obvious that the right to a fair trial includes the right to know the case one has to meet. Court hearings are already difficult for LIPs, but many, being inexperienced, are hesitant to complain about matters such as late service. In child abduction cases, the applicant is entitled to unconditional legal aid while the respondent is only entitled to means and merits-based legal aid. In consequence, it is common for the court to be faced with an applicant, appropriately represented by specialist solicitors and counsel, while the respondent has no legal advice or representation at all and in many cases cannot speak English.
4. The possible unfairness arising from this imbalance have been repeatedly stressed. Instances are found in K (A Child), Re [2010] EWCA Civ 1546 in which Thorpe LJ (at paragraph 34) and Munby LJ (at paragraph 46) said this respectively:

34. …  If a foreign national, albeit an abductor, is obliged to present a case involving specialist issues of international family law before a court in this jurisdiction without any legal representation, and perhaps, as here, without any of our language, it is very hard to see that there is the necessary equality of arms and thus the Article 6 rights to a fair trial. 

46.  Any dispassionate observer sitting in this court might be forgiven for thinking that there is unfairness in that state of affairs and something very far from the equality of arms which is supposed, consistently with Article 6 of the European Convention, to underlie proceedings of this sort as indeed all proceedings.  Justice, as was memorably observed so many years ago, must not merely be done but must be seen to be done.  Although I am confident that, despite the mother's forensic disabilities, justice has been done, I am much less confident that any dispassionate observer having watched these proceedings today would think that justice has been seen to be done, given the disparity in the resources which the State has made available to the one litigant and not to the other.

5. Other similar statements have been made, most recently by Holman J in PH v AH [2016] EWHC 1131 (Fam) at paragraph 12.
6. It might be added that late service of documents further weakens the position of LIPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be more familiar with the system and the language.

This case

7. A mother wrongfully removed a teenager from a convention country to England in February 2016. In March, Hague Convention proceedings were launched by the father. The mother defended them on the basis that the child objected to return. On 23 May, at a hearing at which the applicant was represented by counsel and the mother appeared in person without an interpreter, directions were given for the final hearing. These included standard directions for the filing of statements and for a Cafcass report. The final hearing was fixed for two days starting on 28 July. The parties were to attend and interpreters were to be provided by the court. Although the directions hearing took place fully two months before the final hearing, no direction was given for timely service of documents on the mother, no doubt because such directions are not usual.
8. Statements were duly exchanged and on 29 June (four weeks before the hearing), the Cafcass report was filed. Counsel for the father, a child abduction specialist, was instructed ten days before the hearing, which began on 28 July.
9. At 6 pm on the eve of the hearing, counsel emailed the father's position statement to my clerk with an apology for its lateness, and at 10 am the next morning provided a file containing the position statement and the law reports. At the same time, a copy was given to the mother and her husband, who had travelled several hundred miles to attend the hearing.
10. The position statement was of real assistance to the court and, had she had it sooner, could only have helped the mother, even though it was in English. As it was, time was wasted before the hearing could begin, with the mother studying the documents with the help of the court-appointed interpreter. That help was kindly provided even though the core function of the interpreter is as an interpreter and not a translator.

The Rules

11. PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:

The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing

Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing

The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing

The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that.

12. These are minimum service requirements that should be adapted in individual cases to protect the rights of LIPs. The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent the intrinsic unfairness to LIPs that may arise from late service.
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