It is no secret that across the country the Family Courts have been increasingly overwhelmed. Faced with a backlog of cases and limited resources, extensive court delays have become the norm.

In the recent case of Re B (a child) (Unnecessary Private Law Applications), His Honour Judge Wildblood used his judgement to voice his concern over this pressing issue and to emphasise the importance of settling disputes outside of Court where possible. This blog will briefly explore the impact this judgment will have on children proceedings moving forward.

A quick look into the case

The case was heard at a family Court in Bristol and involved an application to disclose five years of medical records relating to a mother within ongoing private children proceedings. Wildblood ultimately ruled in favour of the mother, concluding that requiring such disclosure would be a disproportionate infringement of her Article 8 rights to a private life under the European Convention on Human Rights.

So, how does this affect future cases?

The conclusion reached by the Judge, in this case, was not significant.

However, Wildblood’s judgment contained a much wider message of immediate public importance – we must stop inundating the Courts with unnecessary litigation. It was this message that attracted legal attention.

At paragraph 7 of his judgement, Wildblood listed various requests that had been recently put before him to exemplify his concerns. He described the below as requests for ‘micro-management’:

  1. At which junction of the M4 should a child be handed over for contact?
  2. 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)
  • How should contact be arranged to take place on a Sunday afternoon?

He concluded his judgement with a strong word of warning:

‘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.’

What’s the impact of this warning?

Firstly, it must be remembered that this word of warning only applies to unnecessary applications. It is not meant to scare off someone making a court application regarding a substantive issue after they have exhausted all other options and cannot realistically resolve the dispute another way.

It is also important to remember that the circumstances of each family law case are different, and therefore, a request that is deemed unnecessary in one case, maybe entirely reasonable and necessary in another. For instance, disputes arising in the context of domestic abuse will reasonably require greater judicial interference and the Courts will of course recognise this.

However, it certainly means that there is an increased pressure on parties to at least attempt to settle their disputes outside of Court prior to making an application. The Courts expect parties to act with common sense and to use the Court system thoughtfully. Unnecessary Court applications for micro-management will not be looked at fondly, and bringing such applications could ultimately result in financial penalties – i.e.; having to pay the other side’s legal costs.

How can a dispute be resolved outside of Court?

Methods of resolving disputes out of Court include the following:

  • Mediation
  • Arbitration
  • Solicitor-led negotiations
  • Collaborative family law

All of these methods can also be used to resolve minor subsidiary issues within a more complex case and there are in fact numerous advantages of opting for one of these methods of Alternative Dispute Resolution (ADR). For example, settling a dispute outside of Court is often much more cost-effective, and it can allow the parties to retain a great aspect of control over the outcome of their dispute.

How can we help?

Here at Family Law Partners we take a constructive approach to family law. We recognise that going to Court is often costly and can be an emotionally draining process for the entire family. This is why we believe that the Court should be used as a last resort and reserved for those cases where out of Court settlement is not possible. Our specialist team of collaboratively trained lawyers and mediators can assist you in resolving your disputes in the most cost-effective and amicable way as possible.

Rosa Schofield is a Solicitor within our London team of specialist family lawyers, mediators and collaborative lawyers.

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