Family Law Hub

B v A [2012] EWHC 3127 (Fam)

  • In a tweet: Essential reading for anyone dealing with without notice applications and location orders 

    Summary: The mother ("M") and father ("F") were both originally from Pakistan. They had married there in 2006 before moving to the USA. They separated there only a year later, just before the birth of their only child. They divorced in 2008 and orders were made giving M custody and F visitation rights. The orders provided that each of them was to give the other notice if they intended to remove C from the USA. 

    M and C subsequently left the USA in breach of the orders (although there seems to have been some dispute over precisely when she left). F brought proceedings in this jurisdiction under the Child Abduction and Custody Act 1985 and the Hague Convention 1980 seeking C's return to the USA. F initially sought a location order and this was granted and disclosure orders were also made.  

    The location order was based principally on an assertion by F that M had a sister in England whom she might visit; this in turn, was based on a Facebook post that F had seen together with information F had received that M had been spotted in a restaurant in Coventry. In fact, it turned out that C was in Pakistan the whole time and had been since 2009. 

    The location order was renewed a total of three times as M could not be found and served with the order. No further substantive evidence was put before the court on each occasion and, in particular, no sworn evidence was put before the court setting out the basis for the order. Eventually, in December 2011, F obtained an open-ended location order.  

    M had no knowledge that a location order had been made. Indeed, the first she became aware of it was, when visiting the UK in June 2012 without C, her passport was removed i.e. when the location order was executed.

    M raised the issue of jurisdiction. F, accepting that neither M nor C were in England in 2011, subsequently sought to withdraw the proceedings with no order as to costs; M refused to accept F's position that the proceedings should be withdrawn on these terms. She wanted her costs and sought a wasted costs order against F and, in the alternative, against his solicitors.  

    Held:  Charles J provides an in depth analysis of the procedural requirements for without notice applications in his judgment (and an excellent and essential starting point if you are having to deal with one of these applications – as one blogger has commented this case "is bloody important for anyone who deals with abduction cases").

    At the start of his judgment, he sets out why making these types of order is such a serious business: 

    "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 [2012] 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)." 

    Referring to the cases of KY v DD (injunctions) [2011] EWHC Fam 1277 and B Borough Council v S & Anor [2006] EWHC 2584 (Fam) (a Charles J decision), Charles J urged upon practitioners "the need for caution, care, rigour and close scrutiny in respect of applications for and the grant of Tipstaff orders on a without notice basis".  

    He quoted the following paragraphs from KY v DD (injunctions) [2011]: 

    "Without notice applications

    The correct procedure applicable to without notice applications has been set out in cases many times before but seems, on many occasions, to be observed more in the breach than the observance. The manner in which Mr Rosenblatt's application was made vividly demonstrates what can happen when proper procedures are ignored.

    Mr Justice Munby (as he then was) in both Re W (Ex Parte Orders) [2000] 2 FLR 927 and Re S (Ex Parte Orders) [2001] 1 FLR 308 set out the procedure which can be summarised as follows:

    (i) Those who sought relief ex parte were under a duty to make the fullest disclosure of all the relevant circumstances known to them, including all relevant matters, whether of fact or law. 

    (ii) Those who obtained ex parte injunctive relief were also under an obligation to bring to the attention of the respondent, at the earliest practicable opportunity, the evidential and other persuasive materials on the basis of which the injunction had been granted.

    (iii) Generally, when granting ex parte injunctive relief in the Family Division the court would require the applicant and, where appropriate the applicant's solicitors, to give the following undertakings:

    (a) Where proceedings have not yet been issued, to issue and serve proceedings on the respondent, either by some specified time or as soon as practicable, in the form of the draft produced to the court or otherwise as might be appropriate;

    (b) Where the application had been made otherwise than on sworn evidence, to cause to be sworn, filed and served on the respondent as soon as practicable an affidavit or affidavits substantially in the terms of the draft affidavit(s) produced to the court or, as the case might be, confirming the substance of what was said to the court by the applicant's counsel or solicitors; and

    (c) Subject to (a) and (b) above to serve on the respondent as soon as practicable (i) the proceedings, (ii) a sealed copy of the order, (iii) copies of the affidavit(s) and exhibit(s) containing the evidence relied on by the applicant and 

    (d) notice of the return date including details of the application to be made on the return date.

    (iv) A person who found himself unable to comply timeously with his undertaking should either (i) apply for an extension of time before the time for compliance has expired or (ii) pass the task to someone who had available time in which to do it.

    (v) Any ex parte order containing injunctions should set out on its face, either by way of recital or in a schedule, a list of all affidavits, witness statements and other evidential material read by the judge.

    Mr Justice Charles in B Borough Council v S & Anor [2006] EWHC 2584 (Fam) stated as follows:

    General comment on without notice applications

    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. 

    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 

    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. 

    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) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 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 [2006] 2 FLR 354). 

    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. 

    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. 

    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."  

    Unsurprisingly, Charles J endorsed all he had previously said. But he also added three further points:

    "(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."

    Charles J was very critical of the way in which the location order had been obtained. He found that not only had the court failed to consider the likelihood of M coming to the UK with C, it had also failed to consider the fact that neither M nor C were in this jurisdiction nor habitually resident here; moreover, the court had not even considered whether it had jurisdiction to make the order nor had it contemplated the appropriateness of making an order that would result in M being deprived of her liberty and freedom of movement.  

    Charles J did not mince his words when he concluded that the F and his legal advisers had flagrantly and seriously breached the principles and procedures which applied when making without notice applications:

    "...the court was not presented with as candid or fair account of the position from time to time, or of the strengths and weaknesses of the father's case, as was reasonably and proportionately practicable in accordance with the principles and practices relating to making without notice applications."

    However, his criticism was not just directed to those involved in this case.  

    "Both Theis J and I (in B Borough Council v S) point out in restrained terms that the principles and procedures in respect of without notice applications that are clearly established by authority are regularly not followed in the Family Division. 

    This case provides an example of this. To my mind, this regular and flagrant failure by many practitioners and judges is contrary to the public interest. I, and some of the other judges of the Division, try to bring about necessary and much needed changes when dealing with without notice applications (particularly in the Applications Court). But sadly, this case is a clear demonstration that we have not succeeded and that a number of our colleagues do not take the same approach. So the serious failings are endemic amongst many family practitioners and judges who have been family practitioners. 

    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." 

    He concluded that for such failures to be avoided in the future, judges needed to refuse to make without notice orders if the established principles and procedures were not applied AND judges needed to treat such failures as negligent and therefore the foundation for the exercise of their discretion to make a wasted costs order.  

    And, so we come on to the issue of costs. Charles J held that M's application for costs against F failed, in part, because there was an arguable case that she had deliberately set out to ensure that F's relationship with C was damaged but also because: 

    " . . . 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 . . . " 

    As a consequence, a wasted costs order was made against F's solicitors. They had failed to comply with the necessary principles and procedures and therefore there were grounds to make a wasted costs order based on negligence. He ordered F's solicitors to pay M £18,000 (inclusive of VAT). Now, what's interesting about the amount to be paid by F's solicitors was that Charles J actually reduced the amount of costs to be awarded: 

    "[F'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, [this] warrant[s] reductions in the costs to be awarded as wasted costs." 

    Comment

    A salutary lesson. Charles J made clear that F's solicitors had been guilty of serious failings but want on to say that the fact that these failings accorded "with an endemic and seriously flawed approach of practitioners and judges in the Family Division to the making and granting of without notice applications" did not excuse them.  

    I think we can presume that the solicitors involved in this case (and, if you read the judgment, you'll see neither side's legal advisers came out well despite them all being acknowledged as "specialists" in this field of law – M's solicitors were criticised for the way they had handled the wasted costs application) managed to get a benefit (the reduction in costs to be paid to M) that another firm in a similar position in the future might not be so lucky to obtain. We've had ample warnings now that the courts (well, the High Court at least) is toughening up on without notice applications, particularly those types of application that involve a serious interference with someone's liberty and freedom of movement. It is right that practitioners take care in preparing these applications – you can't argue with that.

Case note, published: 08/01/2013

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Published: 08/01/2013

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