The family court’s role in micro managing 'trivial' disputes

There has been a good deal of debate in the profession about the case of Re (B) (a child) (Unnecessary Private Law Applications) [2020] EWFC B44, a judgment of His Honour Judge Wildblood QC in Bristol. To put it more accurately, the debate has been about the judge’s comments on other cases. Re B itself was concerned with the matter of a disproportionate order for the disclosure of a mother’s medical records made by a legal adviser. There is a separate judgment on that matter, but the point was that the application for the disclosure should not have been made, and that ‘common sense could have led to the avoidance of this appeal’. However, that would either have meant the mother having to give disproportionate disclosure as a result of the wrong order having been made, or the father dropping his request having succeeded in his application.

The judge released the judgment ‘to highlight the extent to which the court lists are being filled by interim private law hearings that should not require court involvement’. There is a backlog of cases – the judge said that in Bristol by January 2021 (the judgment was in September 2020) there were expected to be double the number of outstanding private law cases than in January 2020.

The judge, he said with the backing of all judges who sit in the Family Court in this area, wished to give the message that this type of litigation should only come before a court where it is genuinely necessary. If the lists are clogged up with unnecessary, high conflict private law litigation the judges will not be able to provide the public with the legal service they need.

He gave examples of similar requests for micromanagement which had arisen before him in the last month:

1. at which junction of the M4 should a child be handed over for contact;
2. which parent should hold the children’s passports (where there was no abduction risk);
3. how should contact be arranged to take place on a Sunday afternoon?

The judge stated that parties and lawyers should settle their differences 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’. Although he said that there were many other ways to settle disagreements, such as mediation, he made it clear that he was not pretending to give any guidance on the issues that he raises.

The judge’s comments are entirely understandable in that where resources are limited, they need to be used effectively. It is another issue as to whether the resources for dealing with family disputes should be so limited. With the decline in eligibility for legal aid, and with parties finding it difficult to pay for legal costs, there will be more litigants in person who will not have the advantage of firm legal advice.

What can be done?

On a practical level, what can be done to help parties resolve disputes about their children?

1. As the judge said, they can mediate. Mediators can assist parties reaching an agreement about their children and parents can be helped to try to see that the conflict over a particular issue in relation to their children may be more harmful to the child than the issue itself. However, mediation is voluntary and is not suitable for all cases, and generally has to be paid for.
2. They can attend family therapy in order to try to improve their communication to enable them to be in a better position to make other decisions in the future for their children. It may be appropriate to attend family therapy with their children. Again, generally this has to be paid for.
3. Arbitration – parties can agree to appoint an arbitrator to make a decision on a point at issue, in a speedy manner. However, they have to agree to arbitrate, and there may be reasons why they do not wish to do this. For instance, arbitration is private and has to be paid for. It should bring about a speedy resolution, and it may suit one of the parties not to have a decision made quickly (although in general it is in children’s best interests to have issues about them decided promptly).
4. Solicitors can use their professional experience to give robust advice to a party in relation to any application they wish to make. They can encourage their client to take a long view. This can be very difficult for clients to do when they are in the middle of emotional proceedings. Either parent may feel that there has been a long history, possibly throughout the marriage, of the other parent getting their own way, and that they should make a stand. It is important to reassure clients that giving way over something that is ultimately of little consequence, is not a sign of weakness but a way of putting their children first.
5. There are cases, however, in which the parties simply cannot agree either with or without mediation or good legal advice. They will need a decision to be made. Who is to say whether something is too trivial for a judge to make a decision about it? It may be that the decision about the particular junction of the M4 is simply the last straw. We have all had finance cases in which everything has been agreed after a day’s negotiation, and the parties are unable to agree about a lawnmower, or a vase, which is worth much less in monetary terms than the combined costs of the lawyers discussing it. Or the arrangements for the Sunday afternoon may make a difference in a practical way to the children’s or the parties lives – perhaps one of the parents sees little of the children and the arrangements for weekend contact mean that the time is reduced to a token amount. If the court’s stance is that you cannot come before it with such disputes (however ‘such disputes’ are defined) then the risk is that the most recalcitrant parent gets his or her own way.

Ideally, parents would be helped to communicate better and learn how to resolve conflict better, as even if a third party did make a decision on the junction of the M4, then there are likely to be other issues in the future which need a decision. For some parents, decision making does improve as the pain of separation recedes and as they move on with their own lives. As children get older, then they are likely to have more autonomy. There are various sources of help such as the Separated Parents Information Programme.

For those who cannot agree between themselves …

However, there remains the issue of how to deal with disputes for those who cannot agree between themselves. What is needed is a cost effective and quick way for a third party to make a decision, whilst encouraging parents to be the ones ultimately to take responsibility to decide matters themselves. That in itself may make disputes more capable of resolution, in that both parties know that a third party will make a decision about their children which may not be what they want. There are ‘parenting co ordinators’ who work with families to resolve disputes and if the parents agree, to make certain decisions. However, again this depends on the parties agreeing that this should happen.

In finance proceedings, there is a ‘fast track’ for variation proceedings, which is intended to be quicker and involve less paperwork than the full financial remedy proceedings. Perhaps there could be a ‘fast track’ for certain decisions in relation to children. There would need to be a definition of what these so called trivial matters would cover, ensuring that there were no safeguarding issues. The hearings would have to be time limited, and there would need to be boundaries in relation to evidence. They could all be held remotely, even when the pandemic is over, in order to free up court space. Training would need to be given, and consideration given as to who would sit. Perhaps it would be a prerequisite for sitting as a family judge that a certain number of days a year are given to this. Thought would have to be given as to appeals, and whether there could be costs orders.

Clearly it is better for children if their parents can work together enough to enable them to make decisions for them, but where for whatever reason this cannot happen, then we need a cost effective and swift way for decisions to be made to avoid the more flexible parent always having to concede, or the courts being overburdened.

This article was first published in the May issue of the Family Law Journal at [2021] Fam Law 599.