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E-mail justice

This is a curious little appeal – I’m slightly surprised it went to an appeal rather than just got reconsidered at local level but it seems like the attempt to do that was rebuffed.

M (Children: Applications By Email) [2020] EWCA Civ 806 (28 May 2021) (bailii.org)

Basically, a Court had directed in care proceedings that there be a psychiatric assessment of the mother. The mother didn’t turn up for the appointment and the psychiatrist alerted everyone and offered a second appointment. Mother’s solicitors were asked why mum had not attended and they didn’t have instructions. The Guardian considered that the appointment should not be reoffered. The children’s solicitor, quite properly, notified the Court that there had been a slip in the timetable.

However, between draft 1 of the notification which was sent to the Court by email and it being actually sent, there was a development. The social worker informed the lawyers that the children’s grandmother had died a few days earlier and that of course the mother was devastated.

That really should have made everyone take stock and decide to notify the Court that the appointment was missed and that enquiries were going to be made as to whether a second appointment could be offered and once the impact on the timetable was known, the Court would be asked to consider matters.

Instead, the email went as drafted, without that key piece of information, but with a draft order for the Judge to approve. (Slightly oddly not the Judge dealing with the case but the Designated Family Judge).

Within 15 minutes of receipt of the email from the children’s solicitor, those representing the mother sent an email contacting the Court.

The Court made an order discharging the direction for a psychiatric assessment. Those representing the mother contacted the Court to ask this to be reconsidered and the Court said that the decision had been made and were standing by it.

So far as the court was concerned, the entire procedure consisted of three emails sent and received within a period of an hour and a quarter.

Hi, it looks like you’re lodging a draft order that isn’t actually agreed. Do you want to get it agreed ? YES / NO

The Court of Appeal in looking at this stressed that there are circumstances, such as the parties inviting the Court to consider a CONSENT ORDER to which everyone CONSENTS, where matters could be dealt with by way of email, but this was not a consent order and the email from the children’s solicitor had not even set out that some of the parties had an alternative view or were without instructions.

  1. Taking stock:

(1) There was, first and foremost, an obligation upon the mother’s solicitors to bring to the court’s attention a development that impacted on the timetable. The children’s solicitor was observing the ‘compliance order’ and following good practice by engaging with the other parties about this, and in drawing it to the attention of the court before a deadline was breached.
(2) However, the making of an application to discharge the order was evidently a step beyond what the compliance order required. It is far from clear why the Guardian considered that the assessment as a whole should be scrapped without some better understanding of the mother’s position. It is clear from the sequence of events that she formed her view before she knew of the mother’s recent personal difficulties, and that she did not revise it when that information was given by the local authority. There is no information about whether or not the children’s solicitor took the Guardian’s further instructions about making an application after that further information came to light.
(3) It is in any case unfortunate that the children’s solicitor’s message was not amended in the light of the information that became available after it was dictated and once it became clear that the application was opposed by the mother. The message to the court did not set out these matters as it should have done. Nor did it explain that on 7 April Dr D had offered the mother another appointment on 25 April.
(4) Further, an application made by email must confirm whether the proposed variation is agreed. The position of the other parties (the local authority, the children’s fathers and the uncle and aunt) was not stated, if indeed it was known at all to the Guardian and the children’s solicitor.
(5) By allowing requests to vary orders to be made by email, the court had used its power to dispense with the requirement for an application notice. In doing so, it had ordered that any such application was to be made to the allocated judge. We asked why this application had been made to Judge Williscroft, who is the Designated Family Judge and had had no previous dealings with the case, and not to District Judge Gillespie, the allocated judge. We were told that this is because the DFJ takes a close interest in the timetabling of cases in her area. That is as it should be, but it does not justify parties approaching a DFJ to make orders in cases allocated to other judges, unless there is some special reason why that should happen in a particular case.

The appeal was obviously allowed and directions made for the assessment to take place.

40. For these reasons, I conclude that the order was wrong and unjust for serious procedural irregularity: indeed, the error in the order was the direct result of the errors in the procedure. The appeal will be allowed and the order will be set aside. The overall circumstances speak in favour of a revision of the timetable, and not for remittal. The original order will revive, with revised dates and (because Dr D is no longer able to report in time) a different expert, who has been identified. The order will record that the mother has promised to attend her appointment and I know that those supporting her will help her to do that; if she fails without good reason, she can expect the order to be discharged. I hope she will be assessed, because even if the child cannot return to her care, the report will be of value in planning for their future, as identified in the District Judge’s original order.

Finally, I make these observations about the procedure for making applications without the filing of an application notice.

Rule 18 of the Family Procedure Rules 2010, which is in similar terms to rule 23 of the Civil Procedure Rules, concerns applications made within existing proceedings. The respondents to an application are the parties to the proceedings (rule 18.2). Rule 18.4 reads:

This framework allows the court to accept and consider applications made without a formal application notice and to make orders without a hearing. It is desirable, at a time when the courts are under considerable pressure of work and where remote case management hearings have become common, for these powers to be used flexibly in the interests of justice and, in the Family Court, in the interests of children. To this end, the court must distinguish applications that can appropriately be made without an application notice from applications that should, because of the importance of the issue or for some other reason, be made by formal notice. The fact that it has given a general permission for applications to be made by email obviously does not prevent it from requiring an application notice to be filed in a specific instance.

Similarly, the court must discriminate between those applications that require a hearing and those that do not. The default position is that there should be a hearing, as the court can only make an order without a hearing if it does not consider that a hearing would be appropriate. It should be on solid ground if it makes an order without a hearing when, as the rule contemplates, the parties agree that a hearing is not required, or where the order is agreed. It may also decide to dispense with a hearing in other circumstances, for example where the issue is not of particular importance, or where the proper order is obvious, or where the documents contain all the information and arguments and a hearing is unlikely to add much. There will be other reasons why an application can be fairly dealt with without hearing – it is all a matter of judgement.

The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person.