The “too long, didn’t read” version – if you’re making an application in the High Court under the Child Abduction and Custody Act 1985, bring your chequebook. And if you’re doing that, and are listed before the Honourable Mr Justice Charles, ring your bank manager first.
A discussion of the decision in the High Court of B v A 2012
As readers of the blog will know, I often lavish praise on High Court Judges. I am fond of High Court Judges who have admirable qualities, such as clarity of thought, beautiful construction of sentences, being able to illuminate a difficult point with a clever analogy, or who are fundamentally kind and appreciate the human dynamics of the cases that appear before them.
I am not afraid of distributing praise in those circumstances – I would say fulsome praise, but I am mindful of the words of Inigo Montoya (no, not, “my name is Inigo Montoya, you killed my father, prepare to die!” – the other one) “You keep using that word. I do not think it means what you think it means”
Don’t ever say fulsome if you mean generously complimentary…. Or at least, not to a word-geek.
Anyway, this judgment is by the Honourable Mr Justice Charles and is bloody important for anyone who deals with abduction cases, both solicitors and counsel.
It would be fair to say that he was irked during the course of this judgment. He considered that insufficient care had been given both to the very serious nature of the application for a location order and to involve the tipstaff, and moreover to the inherent risks of doing so where the initial application was made ex parte, and the facts laid out before the Court were both partial and potentially partisan.
The Judge begins by setting out the reasons why making such orders is extremely serious
- Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that:
i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival,
ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and
iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.
- The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young  2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).
Nothing at all to disagree with there.
The Judge was perturbed that an application had been made that was not constructed as well as it ought to have been. He reminded the applicant’s counsel of a valuable previous authority B Borough Council v S & Anor  EWHC 2584 (Fam) dealing specificially with how inappropriate it was for these applications to be made without notice without a great deal of care.
- General comment on without notice applications
37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.
38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:
i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent’s case is, or is likely to be,
ii) where available and appropriate, independent evidence,
iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and
iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted
39. As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.
40. Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders)  1 WLR 211,  3 FCR 706, W v H (ex parte injunctions)  3 FCR 481 (by analogy X Council v B (Emergency Protection Orders)  1 FLR 341 and Re X (Emergency Protection Orders)  EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris  2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at  2 FLR 354).
41. Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.
42. As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.
43. I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.
Having quoted those passages, the Judge then indicated that he fully agreed with them and added to them
16. As well as endorsing the guidance set out above, there are three additional comments I would make:
(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.
(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.
(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”
All very good points, I have been on the other end of a number of ex parte applications, and when you come to Court and outline what the other side of the story is, you often see the Judge’s expression become “Well, if I had known THAT…”
And these applications are of course, an immensely serious interference with someone’s liberty and free movement, and it is therefore important that a great deal of care is taken, both by the advocate presenting the case and by the tribunal determining it.
The long and short of this case was that the applicant’s representatives ended up not just not getting the order, but with something far, far, far worse than that. Probably the worst outcome you can ever get if you send counsel off to Court to make an application.
- As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed. Naturally this applies to all without notice applications, but it can be said to have particular importance when Tipstaff orders are sought and granted because they can found a deprivation of liberty without further court involvement, and they do restrict freedom of movement.
- In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated.
- It seems to me that if such failures are to be avoided in the future there is a need for judges:
i) to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and
ii) to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order.
- Sadly, the first course alone has not resulted in general improvement and it is to be hoped that when the second course is added it will. But, I acknowledge and confirm that this promotional effect is not a ground for making the order rather it is a potential product of making such an order applying the approach set out in Ridehalgh.
And more chillingly for advocates
- Generally, a litigant has to take the consequences of such behaviour and look to his advisers for recompense but I have concluded that the application for costs against him should be refused, because:
i) the point that the shortcomings in the presentation of his case by his advisers is a reflection of endemic failures of family practitioners and courts means that his conduct should not be categorised and reprehensible or beyond the band of what is reasonable (see paragraph 80 hereof), and
ii) the policy and merits arguments referred to in paragraphs 82 to 84 support no such order being made.
Thus it wasn’t the client who was going to be hit for costs, but rather his representatives
- Also, in my view:
i) the merits and policy arguments referred to in paragraphs 82 to 84 above, and
ii) the point that the father’s solicitors are unfortunate to be singled out when their failures to comply with the principles and procedures relating to without notice applications are widespread in the Family Division and were not picked up by a number of judges, warrant reductions in the costs to be awarded as wasted costs.
- Taking the above into account, in respect of the costs schedule up to the hearing on 10 September 2012, I make a wasted costs order against the father’s solicitors in the sum of £18,000 (to include VAT).
The Judge had actually knocked quite a bit off the costs to reflect that this was a warning shot across the bows and that the particular advocates involved had not been worse in their failings than many other cases. But implicit in that is “woe betide”
I suspect that there may well be some family barristers who are having gentle chats with their clerks about whether the cab rank rule means that they need to take cases where they are liable to be personally stung for costs of £18,000 plus, and frantic calls to the RCJ list office to determine tribunals might well be being made.
I do wonder also whether sufficient weight has been given here to the very nature of the applications – a parent believes their child has been abducted, the child is missing, information is sketchy and develops piecemeal, and often the most strikingly important details emerge during the course of the day and are not necessarily reduced to affidavit form in advance. I also wonder how much better such cases will be presented in the High Court when those advocates who are skilled and accomplished at presenting them no longer want to bear the personal risk of doing so…