In the Matter of W (Children)

On 16 October 2013 the Court of Appeal handed down judgment in In re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 WLR 1993, [2014] 1 FLR 1266. In my judgment, I referred to the lamentable failure of Bristol City Council to comply with an order which His Honour Judge Barclay had made in a family case in the Bristol County Court.

I did not mince my words (paras 50-54):

“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) [2001] 1 WLR 211, [2001] 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) [2013] EWCA Civ 1227, [2014] 1 WLR 1611, para 74.

52

The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] 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.”

On 24 January 2014, in A Local Authority v DG & Ors [2014] EWHC 63 (Fam), Keehan J had occasion to condemn what he called “the wholesale failure of the parties” in care proceedings before him to comply with case management directions which had been given on a number of occasions over the previous four months. He set out the central part of the passage from my judgment in In re W and added “I, respectfully, agree.” He went on to say (para 43):

“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.

Two weeks later, on 6 February 2014, in Re A (A Child) [2014] EWHC 604 (Fam), another care case, Theis J had similar cause to condemn what she called the “air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders”. She expressly associated herself with what Keehan J and I had said. She added this (para 12):

“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.

On 16 June 2014, in London Borough of Bexley v V & Ors [2014] EWHC 2187 (Fam), Keehan J denounced what he called “the contumelious failure of the London Borough of Bexley to comply with directions set out in an order” he had earlier made in care proceedings. He went through In re W, DG and Re A. He said (paras 8-9):

“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.”

I draw attention to the financial penalties visited by Keehan J on the defaulter in that case, including the ingenious and salutary requirement that the defaulter pay the cost of the transcript ‘naming and shaming’. This might be thought an appropriate adaptation to the age of the internet of the penalty inflicted in 1596 by Lord Egerton LK in Milward v Welden Tothill 101 (fuller report, sub nom Mylward v Weldon, in Spence’s Equitable Jurisdiction, 1846, Vol 1 p 376). The Lord Keeper’s order is set out in Standard Bank PLC v Via Mat International Ltd and anor [2013] EWCA Civ 490, para 29.

On 8 July 2014, His Honour Judge Wildblood QC, sitting in the Family Court at Bristol, was hearing the IRH in care proceedings brought by Bristol City Council. The final hearing was the following week, having been fixed, as I understand is the practice in Bristol, at the initial case management hearing some months before. Judge Wildblood had to adjourn the final hearing, for reasons he set out in an ex tempore judgment of which I have seen the transcript. The fundamental problem was that the assessment of a family carer which the court had required Bristol City Council to undertake had not been completed. As Judge Wildblood put it, an adjournment could not be avoided because there was no full assessment and no prospect of it being finished in time for the final hearing.

That very same day, 8 July 2014, I was also sitting in the Family Court at Bristol, like Judge Wildblood hearing the IRH in care proceedings brought by Bristol City Council. The case was unremarkable except for the fact that the four children with whom I was concerned although having the same mother each had a different father. The relevance of that for present purposes is simply this. There were seven parties: Bristol City Council, the guardian of the four children, the mother, three of the four fathers (the other was playing no part in the proceedings) and a member of the mother’s wider family who was putting herself forward as a carer for some of the children. The ‘domino’ effect of any non-compliance with the court’s orders was therefore likely to be particularly serious.

On 6 February 2014, His Honour Judge Rutherford (sitting as a District Judge in the Bristol Family Proceedings Court) had made a case management order which, so far as material for present purposes, set out the following timetable: “there shall be an advocates meeting on 21 May 2014”; the local authority “shall file and serve their final evidence and care plan by 6 June 2014”; the respondents “shall file and serve their final evidence by 20 June 2014”; the guardian’s final analysis “shall be filed and served by 4 July 2014” (a Friday); the matter “shall be listed” for an IRH on 8 July 2014 (a Tuesday) and for final hearing in the week of 14 July 2014, with a time estimate of 4 days. Albeit the relevant court contact details had not been filled in, the order contained the usual requirement that “All parties must immediately inform the Court … if any party or person fails to comply with any part of this order.”

In breach of Judge Rutherford’s order, Bristol City Council failed to file and serve its final evidence and care plan by 6 June 2014. The final statement of the social worker is dated 17 June 2014 but it was not until 24 June 2014 that Bristol City Council filed everything. So Bristol City Council was over two weeks late. The consequence was that, if the respondents were to have the two weeks contemplated by Judge Rutherford, the guardian would be denied the two weeks provided for by Judge Rutherford’s timetable for the preparation and filing of her final analysis.

The consequence was all too predictable. By the beginning of the week commencing 30 June 2014, there was no evidence from any of the respondents. The guardian nonetheless began work on her draft, understandably postponing work on the “analysis” section pending receipt of the further evidence (in fact by 7 July 2014 only one of the respondents had filed any evidence). In order to ensure that, despite all these obstacles, she should be able to comply with Judge Rutherford’s order, the guardian resumed work on her draft at 5am on the morning of 4 July 2014. Progress was delayed by her need to answer several telephone calls from family members, and her draft once completed then had to be ‘quality assured’ by CAFCASS before it could be filed and served. In the event the guardian was not able to email it to her solicitor until 5.43pm, by which time – this was a Friday – he had already left the office. In consequence, it was not until the Monday, 7 July 2014, the day before the IRH listed for 8 July 2014, that it reached the court and the other parties.

That made it impossible for the advocates to comply with the requirements of paragraph 6.4 of PD27A (the ‘Bundles’ Practice Direction):

“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.

Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:

“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.

I take this opportunity of reminding practitioners of what I said, some six years ago, in Re X and Y (Bundles) [2008] EWHC 2058 (Fam), [2008] 2 FLR 2053. Failure by the professions to comply with their obligations under PD27A is simply unacceptable.

The guardian is to be commended for her efforts, efforts without which I doubt that the hearing before me could have been as effective as it was. It is not her fault, or indeed that of her solicitor, that despite her best endeavours on the Friday her report did not reach the other parties until the Monday. It was an all too predictable consequence of Bristol City Council’s delays.

I required Bristol City Council to explain what had happened. The explanation was provided in an email from a lawyer in the legal department sent to my Clerk on 11 July 2014. I set out the key passages:

“In accordance with … the order of His Honour Judge Rutherford dated 6 February 2014, there was an advocates meeting on 21^st 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 6^th 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 17^th June 2014, the parties – or at least some of the parties – agreed that the local authority’s final evidence would be filed on Friday 20^th June 2014.”

She continued:

“ … the late filing was a combination of agreement between the parties – moving the date from 6^th to 20^th 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 20^th but not filing until the 24^th.

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 21^st May. As a consequence I think of this first failure, we then failed to inform the Court, of our problems with filing by 20^th 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.”

I do not propose to take up time examining the extent to which this accords with other parties’ perceptions. Assuming that there was such an agreement, it is beside the point. I protest in the most emphatic terms against the seeming assumption that the parties can, without reference to the court, agree an alteration in a timetable set by the Family Court. They cannot and they must not.

I am aware that a recent amendment to CPR 3.8, inserting a new paragraph (4), permits this in civil cases:

“(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.”

I repeat what I said in In re W. I emphasise that the parties in cases in the Family Court are not permitted to amend a timetable fixed by the court without the prior approval of the court. I emphasise the obligation on every party, spelt out (as in this case) in the standard form of case management order, to inform the Court “immediately” in the event of any non-compliance. That obligation is imposed for good reason, though too often, as in the present case, it also is not complied with.