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Wildblood's Family Court Rules: Keep Out or Just off the Grass?23rd October 2020 Family Law
There are 43 junctions on the M4 between London and Swansea. At the time of writing, the journey from Hammersmith by road is estimated to take a little over 3 hours. On Friday and Sunday evenings, the peak of child arrangement transport, you might as well add at an hour or two.
Close to junction 20 is the Bristol Family court from where this month a message to the family law world and beyond was sent by the decision of HHJ Wildblood QC to release his judgement in Re B (a child) (Unnecessary Private Law Applications).
Referring specifically to interim private law applications, he explained:
“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.”
“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”
The question for anyone involved in or contemplating family litigation is, do these rules start to draw a national line on the practice of family disputes at public expense or like anything new in law, lead to an increase in litigation?
As far as family law proceedings are concerned, the judgement will be used both offensively and defensively.
Forum shopping used to be for the international metropolitan elite but inevitably, in the light of this judgment, parents or divorcing couples may be advised to find an alternative jurisdiction (to Bristol) where their every move will not be held up to the light of this decision.
Lawyers’ standard position statements will presumably have already been modified to invoke or avoid sanction with the emphasis on avoiding criticism for their client whilst bringing it down upon their opponent.
Our every move will be met by a certain breed of family lawyer for whom Wildblood will “make their hearts sing”, screeching, ”If you do that I will do this with costs on” and family law will become even more personal, with lawyers bandying cost threats not just at the opposing spouse but also their lawyers.
Inevitably, such a culture will bring, from time to time, a conflict of interests between client and solicitor or a situation where lawyers routinely ask their clients to indemnify them from costs sanctions. A parent or spouse with limited resources, perhaps one who has experienced a controlling marriage and therefore is risk averse, will be extremely vulnerable. It is hard to imagine such a litigant and pusillanimous lawyer standing their ground against a threat of sanctions and costs.
What interests me is:
- The Wildblood Barometer - On the basis that the case which led to the decision to publish appears to be one of quasi-judicial (perceived) overreach, when are we safe? To use an example from the judgement, how far do your motorway junctions have to be apart? Can a single parent with three children face up to the bullying demands of her former partner and lawyer by asking the court if it is reasonable that she drive from Reading to Swansea each weekend and not just meet at junction 20?
- Regional Judicial Continuity - Has the approach found judicial favour beyond junction 20; where are we safe?
- Longer trials and More of Them - We all know, particularly in children’s cases that not only do circumstances change but also attempting to cover every angle may be impossible. There is a risk and good practice in the light of this judgement may make it essential to attempt to future proof every court order because of the difficulty in coming back to fine tune them. Orders will become harder to agree and first instance judges may be asked to decide every conceivable point of detail as lawyers try to avoid blame in the future for failing to agree everything from the age for a first mobile phone to the relative dangers of contact sports at 13.
- Time as a Healer - Is it actually possible to obtain an interim hearing anywhere in the country, in under six months?
- Whatever Happened to the Happy Eater? - Nothing can be taken for granted or remain the same, something that will be understood by anyone presently arguing with his or her former spouse over a child contact order from 1996 about whether delivery of a child to the Little Chef is a reasonable alternative to the now defunct Happy Eater.
Michael Rowlands is a Family lawyer at JMW London and has been representing families going through divorce for more than 30 years.