In the Matter of L (A Child)

I have before me care proceedings issued by Warwickshire County Council in relation to three children. The father of the oldest child, L, a girl aged 8, is a citizen of and resident in Slovenia. I shall refer to him as K. The two younger children have a different father. The proceedings in relation to L and her younger half-sibling were issued in the Family Court at Coventry on 30 April 2014. The proceedings in relation to the youngest child were issued on 30 July 2014. The final hearing, before a Circuit Judge, is fixed for 27 April 2015. So there has already been much delay.

K does not read or speak English. His native tongue is Slovene. He has not yet received a single document in the court bundle in his own language. Although he has the benefit of a solicitor who speaks Slovene he says that he cannot participate properly in the proceedings unless all the essential documents are translated into Slovene.

The issue came before the District Judge on 25 November 2014 when he made an order which in material part read as follows:

“K is unable to put forward a position at present until he has had the opportunity of considering the papers.

The Court notes that K agreed not to receive the full bundle of papers in Slovene. Turpin and Miller LLC instructed on behalf of K have produced a schedule of documents considered to be essential to be translated, as per the schedule attached. This was undertaken in an attempt to reduce the costs of translation.

…

The Court Orders …

The solicitor for K shall have leave to disclose the bundle of documents proposed to be translated to KL Translation Services for the purposes of obtaining a quotation as to the costs of translation. It is certified by the Court that the costs of translation of £0.102 per word is reasonable cost and costs justified to be expended on the public funding certificate of K. The Court certifies that it is necessary for the bundle of papers to be translated to Slovene so that they are accessible to K.”

The scheduled documents run to 591 pages extracted from a court bundle which at that stage contained 989 pages. I am told that the quoted rate of £0.102 per word is less than the rate – £0.108 – prescribed by the Legal Aid Agency (LAA). I am also told that the cost of translating these 591 pages will be in excess of £23,000. So on average each page costs about £38 to translate.

The LAA’s response to the District Judge’s order, and to the application by K’s solicitor for prior authority, was set out in two letters each dated 19 December 2014. One read as follows:

“I refer to your application for prior authority to incur over £23,000.00 translating a substantial part of the Court bundle from Slovenian to English.

This application is refused as it is not considered the expenditure is necessary or justified. It is accepted that if the client cannot speak or read English he does need to understand the evidence. However, it is very unlikely indeed that he will actually to read such a large volume of documentation. Further, unless the client is a lawyer or has some experience of the work done by child professionals, I cannot see that a verbatim translation would be of any real benefit to him. If the client were an English speaker, would you consider it essential that he was provided with a copy of the Court bundle?

I suggest you review your strategy and put together a further quote in which the conducting solicitor summarises the key documents for the client and then provides an estimate for the cost of translation of that summary for the client. It is the experience of the writer this is likely to result in a fraction of the cost of a full translation.

There is no right of appeal against this refusal. However, in the event that you decide to go ahead with the cost of the translation without prior authority, there will be a right of appeal to an Adjudicator in the event that these costs are disallowed on consideration of your High Cost Case Plan.”

The other letter read as follows:

“Thank you for your request for prior authority. After considering the information provided, I have refused your application for the following reason(s): it is not considered that the expense is reasonable or necessary having regard to the issues in the case and/or the value of the claim.

Since the introduction of the 2010 Standard Civil Contract and the 2012 Family Contract there is no right of appeal.

If you have any questions, please call our Customer Service Team on the number at the top of this letter.”

I am not at all surprised that the LAA decided as it did. Its decision was re-iterated in a further letter dated 6 January 2015.

On 22 January 2015 the matter was listed before the Designated Family Judge for Coventry, Her Honour Judge Watson, to consider what should be done in light of the LAA’s stance. Judge Watson transferred the case to me, solely for the purpose of considering this discrete issue. It came before me when I was sitting at Northampton on 28 January 2015.

Bearing in mind the requirement of the Bundles Practice Direction, FPR 2010, PD 27A, para 5.1, that

“Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text”,

it is at first blush surprising that the court bundle in this case is well over 2½ times that size and that the number of pages to be translated is so greatly in excess of the bundle page limit.

When I inquired whether judicial approval had been obtained in accordance with PD27A para 5.1 to exceed the permitted limit, I was told that it had not. This did not surprise me at all. My experience, shared by far too many of my brethren, is that in this respect, as indeed in too many other respects, PD27A is frequently, indeed in some places almost routinely, ignored.

As long ago as 2008, in Re X and Y (Bundles) [2008] EWHC 2058 (Fam), [2008] 2 FLR 2053, over eight years after the promulgation of the original bundles Practice Direction in March 2000, I expressed myself in strong terms. I said (para 2), that:

“Th[e] continuing failure by the professions to comply with their obligations is simply unacceptable. Enough is enough. Eight years of default are enough. Eight years are surely long enough for even the most casual practitioner to have learned to do better.”

I added (para 7) that:

“there is, and can be, absolutely no excuse for [practitioners] not being completely familiar with the Practice Direction and its contents and complying meticulously with its requirements”.

Yet here we are, more than six years on, and almost fifteen years after the original Practice Direction, continuing to experience, and experience far too frequently, serious default in complying with the requirements of PD27A.

In Re W (Children) [2014] EWFC 22, para 12, I drew attention to PD27A para 6.4:

“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.”

That had not been done. I said (paras 12-14):

“12

… 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.

13

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.

14

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.”

Subsequent experience of continuing defaults suggests that I was merely wasting my breath.

More recently, Mostyn J, in J v J [2014] EWHC 3654 (Fam), and then Holman J, in Seagrove v Sullivan [2014] EWHC 4110 (Fam), have been driven to express themselves in justifiably strong terms. Having complained that “routinely the profession pays no attention to” PD27A, Mostyn J suggested (para 52) that the remedy might be:

“to set up a special court before which delinquents will be summoned to explain themselves in open court, just as delinquent practitioners in the Administrative Court are summoned before the President of the Queen’s Bench Division pursuant to the decision in R (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin). Perhaps such a court would regularly consider whether to disallow fees pursuant to CPR 44.11(1)(b) and/or section 51(6) Senior Courts Act 1981.”

Holman J adopted another technique (paras 52-55):

“52

… There has been wholesale breach of the practice direction … I propose to deal with it, in this case, as follows. Except for the two skeleton arguments and the chronology, every single piece of paper that has so far been lodged will be taken away from this courtroom now …

53

I will adjourn this case now until 10.30 tomorrow morning. At 10.30 tomorrow morning, unless by then the parties have reached an overall settlement of this case, they must attend with one, single, composite bundle, containing not more than 300 pages as the President’s direction requires. I say 300, for I am excluding and retaining the two existing skeleton arguments, which … extend to about 50 pages …

54

If the parties cannot agree as to the contents of the documents bundle, then each side can select 150 pages of their own choosing, thereby making the total of 300 …

55

I wish to emphasise as strongly as I can by this judgment … that the President’s practice direction … mean[s] what [it] say[s] and must be adhered to. There is no more room at all for courts being resigned or fatalistic when the sort of thing that has happened in this case happens again. As Mostyn J said in J v J at paragraph 52, it is no use the court continuing feebly to issue empty threats. There is only one effective sanction, and that is what I propose to apply. The whole lot must be taken away and we start again.”

I need to take this opportunity to address other examples where experience shows that requirements of PD27A are routinely ignored. I emphasise that the list which follows is not exhaustive.

PD27A requires the preparation and lodging of a “bundle”. PD27A, by design, does not refer to and does not acknowledge the concept of a “core bundle”. The use of so-called “core” bundles was condemned by Mostyn J in J v J, in a passage (para 51) with which I entirely agree:

“I also deprecate a practice of circumvention of which I have become aware. That is for the lawyers for both sides to agree a single “core” bundle and, in addition, an archive of many volumes of expensively prepared secondary or background material. This archive is then brought to trial in the confident belief and expectation that the trial judge will grant permission pursuant to PD27A para 5.1 at the final hearing itself to use documents from the archive. This is no better than the old regime which the new prescription was designed to stamp out. Para 5.1 expects that a direction for permission to use more than one bundle is obtained before, not at, the final hearing. It is possible, of course, that, unexpectedly, further documents may be need to be deployed at the final hearing; but the starting point, and the usual finishing point must be that all the relevant documents should be in the single bundle. To describe the single bundle as the “core” bundle suggests that there will inevitably be other documents in further bundles outlying the core. That is the wrong approach. There should only be one single bundle unless prior permission to use more than one has been obtained.”

A judge, exercising the power conferred by para 5.1, may of course, in an appropriate case, direct that there is to be a single “core” bundle accompanied by other bundles arranged in accordance with directions given by the judge. But unless a judge has specifically directed, using the expression, that there is to be a “core bundle”, the expression is not to be used: the obligation on the parties is to prepare a PD27A-compliant “bundle”.

PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.

PD27A para 5.1 requires the bundle to be contained in an “A4 size ring binder or lever arch file” (emphasis added). Too often this requirement is ignored and the bundle is contained in a foolscap binder or lever arch file. This will not do. This requirement must be complied with. This is not some mindless pedantry. There are reasons for the stipulation, each deriving from the fact that an A4 lever arch file, although it contains as many sheets of paper, is not as tall as a foolscap lever arch file. First, a standard size bankers box can accommodate 5 A4 lever arch files, but only 4 foolscap lever arch files. Second, many judges and courts have trolleys or shelves arranged to accommodate A4 lever arch files, the purpose being to maximise the number of shelves (and thus the number of files) that can be fitted in any given space.

PD27A para 5.2 requires all documents in the bundle to be “copied on one side of paper only, unless the court has specifically directed otherwise” (emphasis added). Again there are reasons for this stipulation. Interleaving additional pages in a double-sided bundle can be problematic. The blank left-side page can be used for notes.

I have already referred to PD27A para 6.4 and drawn attention to what I said about it in Re W (Children) [2014] EWFC 22, para 12. Compliance with PD27A para 6.4 remains fitful. It is, for obvious reasons, a critically important provision. Compliance with PD27A para 6.4 is essential, as also, for similar reasons, compliance with PD27A para 8.2.

I have also referred to PD27A para 7.4 and drawn attention to what I said about it in Re W (Children) [2014] EWFC 22, para 13. PD27A para 7.4 could not be clearer but it is routinely ignored. It is bad enough when a second (witness) bundle is unnecessarily and improperly delivered to the court or the judge before the day of the hearing. It wastes the time of court staff and judges. It is even worse when – and I have had this experience myself more than once in recent weeks – the second bundle is not needed because there is no prospect of any oral evidence from witnesses; in such a case money – very often public money – is simply being wasted in the preparation of a wholly unnecessary copy bundle.

This practice must stop and I have taken practical steps to stop it. From now on, counter-staff at court offices will be instructed to refuse to accept witness bundles, unless a judge has specifically directed that they are to be lodged, and to require whoever is trying to lodge them to take them away. If witness bundles are sent by post, or by DX or delivered by couriers who refuse to take them away, they will, unless a judge has specifically directed that they are to be lodged, be destroyed without any prior warning necessarily being given. They will not be delivered to the judge and will not be taken into the courtroom by court staff.

I make two final observations about PD27A, both of which bear on the crucial issue of the size of the bundle – something which is at the core of the difficulties in the present case. The first is that PD27A para 4.1 spells out the fundamental principle that:

“The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing (emphasis added).”

In other words, there is a double requirement to be satisfied before any document is included in the bundle: it must be relevant and it must be a document which will used, in the sense that it will either be read or referred to. This principle is reinforced by the list of documents which PD27A para 4.1 states “must not be included in the bundle unless specifically directed by the court”.

The other observation is the desirability of documents being, to adopt the language of PD27A para 4.4, “as short and succinct as possible”. This is a topic I dealt with in both my second and my third View from the President’s Chambers: [2013] Fam Law 680, [2013] Fam Law 816. In relation to both local authority documents and expert reports, I made the point that they should be succinct, focused and analytical though also, of course, evidence-based. In relation to expert’s reports I said ([2013] Fam Law 816, 820):

“there is no reason why case management judges should not, if appropriate, specify the maximum length of an expert’s report. The courts have for some time been doing so in relation to witness statements and skeleton arguments. So, why not for expert’s reports? Many expert’s reports, I suspect, require no more than (say) 25 or perhaps 50 pages, if that. Here, as elsewhere, the case management judge must have regard to the overriding objective and must confine the expert to what is necessary.”

As that makes clear, the approach is not confined to an expert’s report. There is, in my judgment, no reason why case management judges should not, if appropriate, specify the maximum length of a skeleton argument, a witness statement, a local authority’s assessment, an expert’s report or, indeed, any other document prepared for the proceedings which will be included in the bundle. I would encourage judges to do so. Too many documents are still too long, often far too long, not least having regard to the 350 page bundle limit. I recently tried a care case where a psychologist’s report ran to some 150 pages. In the present case the bundle includes no fewer than 131 pages of witness statements by the mother. Another problem is created by unnecessary repetition, for example where the second witness statement reproduces all or most of the first before proceeding to add the more recent material, or where much of the detail in a lengthy assessment is reproduced, sometimes almost word for word, by the assessor in a subsequent witness statement: see again, for a recent example, Re A (A Child) [2015] EWFC 11.

This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough. From now on:

I make clear that PD27A has nothing to do with judicial amour-propre, nor is its purpose to make the lives of the judges easier. On the contrary, as I observed in Re X and Y, it is simply a reflection of the ever increasing burdens being imposed upon judges at all levels in the family justice system. I continued (paras 5-6):

“5

… The purpose of all this is to ensure that the judge can embark upon the necessary pre-reading in a structured and focused way, making the best and most efficient use of limited time, so that when the case is actually called on in court everyone can proceed immediately to the heart of the matter, without the need for any substantial opening and with everyone focusing upon the previously identified issues. The objective is to shorten the length of hearings and thereby to increase the ‘throughput’ of the family courts – with the ultimate objective of bringing down waiting times and reducing delay.

6

But these wholly desirable objects – wholly desirable in the public interest and in the interests of litigants generally – are imperilled whenever there is significant non-compliance with the Practice Direction …”

The judges of the Family Division and the Family Court have had enough. The professions have been warned.

I return to the present case.

My disquiet about the number of pages which it was said needed translating only increased when I examined the schedule listing the 591 pages in question. With all respect to the District Judge, and to those who encouraged him in his decision, the idea that it is “necessary” for all these 591 pages to be translated is quite impossible to justify. The schedule of documents to be translated includes the index to the bundle (6 pages). Why? It includes all 23 pages of the local authority’s original application. Why? It includes various orders of the court (16 pages). Why? It includes 17 pages of advice on another party’s immigration status. Why? It includes 32 pages of recordings of contact sessions. Why? Indeed, why are these documents in the bundle at all, given the peremptory terms of PD27A para 4.1(d)? It includes, as I have said, no fewer than 131 pages of witness statements by the mother. I could go on.

When the matter was called on before me, I expressed myself in trenchant terms, questioning how the proposed translation of 591 pages at public expense could possibly be justified. I sent the parties away to produce a shorter and more sensible schedule, expressing the hope that it might come in at no more than (say) 100 pages. After lengthy discussions to which I was not privy, the parties returned to court with a revised schedule running to 256 pages. At £38 per page, the cost of translating all that would have been of the order of £9,750. I indicated that the schedule was still far too long and directed the parties to supply me with a bundle containing the 256 identified pages so that I could decide for myself what really needed copying, a task seemingly beyond the parties. The bundle reached me subsequently.

In my judgment the District Judge was correct in treating the relevant test as being what is “necessary” to enable the proceedings to be resolved “justly”. I use the word in the sense in which it is used in section 38(7A) of the Children Act 1989, in section 13(6) of the Children and Families Act 2014, and elsewhere, as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3. The District Judge was, however, with all respect, plainly wrong in his evaluation of what was indeed necessary in the present case.

As was made clear in In re H-L, “necessary” means necessary. It has “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” It is essential, and I wish to emphasise this, that the test of what is “necessary” is not watered down in practice. Judges must be astute to ensure, whatever the context, whether in directing expert evidence or, as here, directing translations, that what they say is necessary really is necessary. It is vital that the currency is not debased. It is essential that if a judge declares in an order that something is “necessary” everyone, the LAA included, can be confident that it really is necessary.

I ask myself, therefore, what it is “necessary” to translate in this case. Is it necessary to translate a particular document in full? Or is it necessary to translate no more than particular parts of the document? Or is it necessary to translate only a summary prepared by K’s solicitor?

In considering these questions it is essential to focus on the forensic context. This is shortly stated. K lives in Slovenia. The mother, L, the two younger children and their father live in this country. The proceedings relate essentially to what has happened in this country and, specifically, to the care given to L and her half-siblings in this country by the mother and the younger children’s father. Little of the documentation relates to or refers to K.

In my judgment it is “necessary” for K to be able to read in his own language those documents, or parts of documents, which will enable him to understand the central essence of the local authority’s case or which relate or refer specifically to him. The remaining documents need only to be summarised for him in his own language.

The bundle identifies twelve documents which it is said need translating. I deal with them in turn, setting out my conclusions in summary form:

Plainly it is necessary for K to understand the case as a whole and to be aware of the important substance – not the fine detail – of the various other witness statements, reports and assessments. As proposed by the LAA, this necessitates the preparation by K’s solicitor of a summary. That summary, if it confines itself, as in my judgment it should, to matters of substance rather than fine detail, need be no more than (say) 30 pages in all.

The point is made that between now and the final hearing various other documents will be served. If the same approach is applied as that which I have set out above, and in my judgment it should be, I would expect that it will be necessary for K to see only a modest number of additional pages in translation. The remainder can be summarised at probably quite short length.

I invite the parties’ representatives to draft, and submit for my approval, an amended form of order to give effect to this judgment.

I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation.