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Judicial exasperation at private law proceedings that should not require court proceedings - There are many other ways to settle disagreements, such as mediation.

This judgment gives an insight into the mindset of the family judiciary at this moment in time. It is reproduced in slightly abbreviated form below:

1. In error and, no doubt, under intense pressure from a busy court list, a legal adviser made an unnecessary and disproportionate order for the disclosure of five years' worth of medical records relating to a mother in private law proceedings…. The child involved in the proceedings is not yet two years old.

2. I am releasing this judgment for publication not because of any legal point relating to the disclosure of medical records – I have dealt with that separately in a much longer judgment…

3. I am releasing this judgment to highlight the extent to which court lists are being filled by interim private law hearings that should not require court involvement. By January 2021 we expect that, in this court, we will have double the number of outstanding private law cases that we had in January 2020. We already have over 1 ½ times the number of such cases since January 2020… Therefore, not only is unnecessary litigation wasteful. It clogs up lists that are already over-filled – in terms of the over-riding objective, it amounts to an inappropriate use of limited court resources…

4. I am not pretending to give any guidance on the issues that I raise. It is not for me to do so. However, as the Designated Family Judge for this area, I know how much time is being taken up by unnecessary litigation of this nature. I also know that, in giving this message, I have the backing of all judges (including magistrates) who sit in the Family court in this area. The message that we wish to give is that this type of litigation should only come before a court where it is genuinely necessary. That is especially so where lawyers are involved, since they can be expected to steer their clients away from court except where necessity otherwise demands.

5. I wish to put the issue in this appeal into perspective now:

i) The application for disclosure of medical records has to be put into the context of there … [already being] a large amount of information available to the court.

ii) The order for disclosure … has to be viewed against the backcloth of a case where it is accepted that the child involved would either live with the mother and have contact with the father… or would share his time between the parents... Thus, whichever case ultimately prevails, the child will spend a lot of time with the mother…

iii) Both parties have been represented by experienced counsel and solicitors.

iv) The court lists in this court are packed with work [for the foreseeable future]…

v) This appeal has taken me 3 ½ hours to prepare… The appeal was listed for two hours and has been attended by counsel for both parties. Another judge gave directions in the appeal on paper…

vi) The cost of this appeal runs into thousands of pounds. The court (including myself) is paid for out of public funds. The mother is legally aided and thus her legal costs are paid from public funds. The father has funded his own solicitor and counsel.

6. The judges at this court have an unprecedented amount of work. We wish to provide members of the public with the legal service that they deserve and need. However, if our lists are clogged up with this type of unnecessary, high conflict private law litigation, we will not be able to do so.

7. … I give these examples of similar requests for micro-management that have arisen before me in the past month:

i) At which junction of the M4 should a child be handed over for contact?

ii) Which parent should hold the children's passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction?)

iii) How should contact be arranged to take place on a Sunday afternoon? Other judges have given me many other, similar examples.

8. [That an erroneous order was made] is no fault of the parties or of the lawyers… However, if common sense had prevailed, it would not have been necessary for the legal adviser to determine the issue at all and, when faced with the erroneous order, common sense could have led to the avoidance of this appeal.

9. Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation. Case: Re B (A Child) (Unnecessary Private Law Applications), Re [2020] EWFC B44

(Source: Baillie, 25th September 2020) 

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