Thoughts for a fair family court

A letter from Philip Marshall QC

 

Philip Marshall QC, chair of FLBA, comments at http://flba.co.uk/blog/2016/10/07/flbmail-5-oct-2016/ on the recent ‘Fifteenth view’ of Sir James Munby, President of the Family Division (see eg http://flba.co.uk/downloads/ms_13993.pdf). The president’s short opening paragraph includes: ‘The fact is that we are approaching a crisis for which we are ill-prepared and where there is no clear strategy to manage the crisis.’

 

Philip’s comment on this diagnosis includes:

 

‘We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.’

 

I agree. Fairness – or justice – within the family courts (Family Division and Family Court) must remain an absolute. Justice in a ‘reasonable time’ (European Convention 1950 Art 6(1)) and that if resolution is delayed in children cases is generally to a child’s detriment (Children Act 1989 s 1(2)) must both remain part of the overriding objective of family law. But they are meaningless unless accompanied by real time-saving procedural proposals.

 

Case management: the key to saving time

 

Case management is the key; and Sir James is in a unique position to influence that, for he is both administrator and judge (a constitutional anomaly: both executive and judiciary; but for the present that is not an immediate concern). Other principles for avoidance of delay without sacrifice of fairness can also be identified. A few thoughts follow. Mostly these boil down to judges following the rules and law already there (or – as often happens – being urged by Sir James and the Court of Appeal so to do):

 

  • Case management – This is critical: interventionist, firm, ‘robust’ (the modern cliché) – call it what you will. The judge can control progress of a case in a variety of ways, so long as fairness is not lost and judicial continuity is retained. (A commercial plug: I deal with this extensively in Evidence in family proceedings shortly due for publication by Family Law/LexisNexis). Proportionality must rule.

 

  • Definition of issues for trial in a case – The most important case management question is to define the issues before the court so that everyone knows what remains to be contested and the evidence fairly required to deal with it.

 

  • Relevance of evidence – The rule is that only evidence relevant to an issue is admissible; so judges (eg as part of case management) can firmly exclude what is not relevant to a clearly defined issue before the court.

 

  • Legal representation – Legal representation can increase fairness, and – if self-control is exercised by family lawyers – it can save the court time. It should also promote settlement or definition of issues and pruning of irrelevant evidence.

 

  • Mediation and settlement conferences – Mediation (Philip comments on settlement conferences in his letter) so obviously can save court time: where cases are settled (and many do if parties want them to); or if issues are narrowed by mediators. Mediation can only work properly if it remains voluntary; but judges can urge it upon parties.

 

And clarity: perhaps I am biased; but I also believe that a much clearer and better expressed version of our law – statute and rules – could save time. Less time would be spent getting it wrong, or on appeal to the Court of Appeal to explain unclear law. And clarity would certainly promote justice.

 

There is no magic in any of the thoughts above. All are there in the rules already. Fairness cannot be sacrificed by family courts on the altar of pressure of time; just as health should not be sacrificed to pressure of resources. That said, realities must be faced by all of us involved in family courts process.

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A CHILD LAW QUESTION AND A ONE-FAMILY-BREAKDOWN-FILE RULE (Part 1)

Same children, same family breakdown: why different hearings?

I have been asked: why do family courts often list children arrangements hearings and financial provision for, or involving, the same children before different judges – sometimes even on different files. It is the same children. It is and similar children law welfare principles – money or child arrangements – which guide the courts.

The children issues and whether their carer parent can keep their home involves the same children and often similar facts; so why not all before the same judge? Does not separate hearings and different judges offend against the overriding objective in FPR 2010 r 1.1, namely:

 

1.1 The overriding objective

(1)    These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a)ensuring that it is dealt with expeditiously and fairly;

(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)ensuring that the parties are on an equal footing;

(d)saving expense; and

(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

I will try to answer these questions by first setting out what the statutory underlay for all this is; for this area of law is heavily geared to Acts of Parliament. (The exception to this (ie (5) below) is where a couple were not married or in a civil partnership and their property is in issue (cohabitation law). Here, by contrast, Parliament has been unable to work out what – in law – to do about such families.) Then I shall deal with case management and the definition of issues, so critical to progress with family proceedings.

Statutory provision

Parliament says:

  • Children Act 1989 (CA 1989) s 1:

(1)  When a court determines any question with respect to –

(a)the upbringing of a child; or

(b)the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

  • Child Support Act 1991 (CSA 1991) s 1:

(1) For the purposes of this Act, each parent of a qualifying child [ie of which they are both the natural parent, or an adopted child] is responsible for maintaining him.

  • Matrimonial Causes Act 1973 (‘MCA 1973’) s 25(1), and Civil Partnership Act 2004 (which for our purposes mirror one another, so reference will be made only to MCA 1973):

(1) It shall be the duty of the court in deciding whether to exercise its powers [to adjust family property (eg the parties home), award lump sum payment or maintenance (called periodical payments) and pension adjustment orders] and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

  • Children Act 1989 Schedule 1 (‘Sch 1’): provides money only for children, but not where parents are getting divorced or they were never married, but on similar principles to MCA 1973. Since CA 1989, by definition, deals with welfare of children the welfare-first rubric in MCA 1973 s 25(1) is not necessary.

 Exception: equity and a the single parent

  • Parents not married to each other: cohabitation law is not statutory and makes no specific provision for children. Capital of married couples can be adjusted under MCA 1973 (and this may include for a home for a child); but the same child, if his/her parents are unmarried, will depend on a scramble of laws (called ‘equity’) (‘equitable’) which may or may not leave him with a home: more likely yes, whilst the child is dependant, but often not once the last child has left home.

But, but, but: on a relationship breakdown the couple’s children will be the same children under each set of statutory provisions. So, why do we have different judges and the Child Support Agency for those same child(ren)? Why not one relationship breakdown file for all, and one judge to dispose of trial issues? ‘Why’ indeed.

One relationship breakdown – and one set of proceedings?

This article will look at (1) what is likely to happen now under the present procedural rules; (2) what could happen under the same rules to make relationship breakdown easier for children and their parents; and (3) – a bit of law reform dreaming: what should happen, so that the law and its practitioners can try to make an already bad situation as little worse as possible. This will be in Part 2 (to follow).

Broadly speaking the law relating to children is the same whether parents are married or not. CSA 1991 applies to a parent with care and a non-resident parent. CA 1989 Parts 1 and 2 (what family lawyers call ‘private law’: ie child arrangements) is concerned with parents and others with parental responsibility. And CA 1989 Sch 1 deals with finances as between parents (married or otherwise). MCA 1973, so far as it deals with finance for children, can only provide if their parents are married.

Child support

CSA 1991 skews the whole family finance set up. Mrs Thatcher felt that too many men were getting away with not paying for their children; and that lawyers had failed to fix sensible amounts to be paid and to enforce what was due (if not paid). ‘Something must be done’ she said; and it was – but what a mess….

The scheme is run by Department of Work and Pensions and is based on administrative, not family, law. Its enforcement is partially based on 1980s poll tax enforcement. And, truly wild to tell: the same parents can be involved in four first instance courts/tribunals; and that still does not allow for divorce and other cases in the Family Court. There is no way, as the law now stands, that DWP will permit their case (as they see it) to be argued alongside other family proceedings; or even in the same court. And most district judges are too frightened – because mostly ignorant on the subject – to take on the DWP and their lawyers (proof of this statement is available).

The law, family breakdown and child arrangements

Child arrangement proceedings (formerly custody and access, then residence and contact: Children Act 1989 Parts 1 and 2) are likely to be dealt with in an individual set of proceedings, and only exceptionally before the same judge on the same day.

Later a district judge – almost certainly a different judge – will deal with money. Maintenance cannot be dealt with on a contested basis by this judge (CSA has a monopoly on this), unless the parties agree.

Family Procedure Rules 2010 (‘FPR 2010’) – the rules which cover family proceedings – put nothing in the way of one court dealing with all issues concerning children (other than for child support under CSA 1991: CSA 1991 s 8(3)). There is no reason therefore why all children proceedings couldn’t be in one court and dealt with throughout by one judge. That judge would be in a position then to say that, for example, children proceedings should be separated off, perhaps be dealt with first. It all depends on the procedural needs of each family, with welfare issues (mostly of children: r 1.1(1): set out above) coming first.

Definition of issues: agree what you disagree

It truly is as simple as that. A family judge defines the issues (FPR 2010 r 1.4(2)(b)). It is a duty, says FPR 2010 r 1.4, yet the judges rarely define properly what is in issue. The one thing which parties to court proceedings must be able to agree is what they do not agree (eg about children or who should have the family home). These are then the structure of what the court is being asked to do (‘the issues list’). In many simpler cases, the list will probably fit on a side of A4.

If a dispute remains about arrangements for a child (where s/he is to live; when to be seen by the non-carer parent), then properly case managed the judge can consider listing all issues on one day before one judge; or on different days – but still, with the same judge (if available). Often it may be better to take money and children issues separately; but at least the court and the parties should consider whether one trial will work (and see FPR 2010 r 1.4(2)(j) (below)).

Overriding objective

The overriding objective is a ‘code’, a set of principles analogous (say) to a person’s manners or a ‘code of honour’. Manners guide the way you behave but are not rules in themselves. The overriding objective here is closely based on aspects the jurisprudence of European Convention 1950 Art 6(1) (which requires courts to provide a fair trial (dealing with a case justly: FPR 2010 r 1.1(2)). Ensuring parties are on an ‘equal footing’ is called ‘equality of arms’ in Convention jurisprudence; and so on.

Allotting a sensible share of ‘the court’s resources’ drives the one session-for- children-of-one-family-breakdown-and-their-money hearing demands a single judge for the same family, surely? The parties (a) they must help the court to further the overriding objective (FPR 2010 r 1.3) and (b) the court ‘must… actively’ manage cases. The judge must identify issues (as already mentioned) and, says FPR 2010 r 1.4(2)(j), s/he must deal ‘with as many cases as [the court is able to] on the same occasion’.

These are judge’s ‘duties’. They are like doing the washing up when it’s your turn, or not being late for work: they are things that the judge ‘must’ do. If I ruled the family law world, I’d make all family judges learn r 1.4(2) by heart; and the rule (italics refer to the two paragraphs mentioned in this article) says:

1.4 Court’s duty to manage cases

(1)  The court must further the overriding objective by actively managing cases.

(2)  Active case management includes –

(a)setting timetables or otherwise controlling the progress of the case;

(b)identifying at an early stage –

(i)the issues; and

(ii)who should be a party to the proceedings;

(c)deciding promptly –

(i)which issues need full investigation and hearing and which do not; and

(ii)the procedure to be followed in the case;

(d)deciding the order in which issues are to be resolved;

(e)controlling the use of expert evidence;

(f)encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(g)helping the parties to settle the whole or part of the case;

(h)encouraging the parties to co-operate with each other in the conduct of proceedings;

(i)considering whether the likely benefits of taking a particular step justify the cost of taking it;

(j)dealing with as many aspects of the case as it can on the same occasion;

(k)dealing with the case without the parties needing to attend at court;

(l)making use of technology; and

(m)giving directions to ensure that the case proceeds quickly and efficiently.

I’d test the judges on their knowledge at least once per month. Any judge who failed… Yes, well – I won’t ever rule the family law world…

A FAMILY LAW REFORM MANIFESTO

A hundred days till the election

With a hundred days to go to an election, my top ten list for law reform (mostly family) would be as follows:

1 Clarification of law – all primary law, procedural rules and other delegated legislation (regulations, guidance and the like) must be written in language which is understandable by the averagely intelligent lay-person (with a dictionary). The procedures it describes must be logical and follow common law rules. Children law procedure in one part of Family Procedure Rules 2010 (Part 12) with 16 practice directions is an insult to all of us; and an unjustified assault on the many lay people who wrestle with litigation over their children. Legal aid and its regulations add another dire dimension of opacity of the so-called rule of English law.

2 Mediation first – the mediation process should be clearly separated from the litigation process. In the public mind the point of entry into the family breakdown system should be mediation first. It would follow from that, that solicitors’ organisations (eg Law Society, Resolution) should look very carefully at the extent to which they can fairly, and without conflict, represent both mediators and litigators.

3 Cohabitation law – must be brought into line (as it has been for most children proceedings: welfare and money) with other law on family breakdown (eg in relations to parties’ finances and rights to their home).

4 Legal aid – in the modern austerity climate a wholesale return to pre-1999 family law legal aid is impossible; but circumstances where the tax-payer can be banker (via the statutory charge must be investigated); domestic and other abuse must guarantee legal aid (graded domestic violence: how sick is that?); other forms of funding – without too much complexity (relative ‘clarity’ per 2 above) must be found.

5 Case management – effective case management is the obvious ‘something must be done’ of Munby J’s plea; but now he is in a position to do ‘something’ he ignores the point. The judiciary has the remedy in its own hands; but it must take hold of it:

• Since case management has been around since at least 1999, it seems judges in family proceedings need training
• Issues must be identified at the outset, and the evidence relevant to these issues kept under control
• Issues which need a preliminary decision – sometimes so obvious – must be identified and disposed of

6 Parallel case management and mediation – case management must go hand-in-hand with mediation; on a parallel (ie parallel lines never meet, save in infinity) basis. There will be symbiosis between mediation and case managed litigation: sometime the mediator will control this; sometimes the court. The point is that the court process – and therefore the marriage breakdown lawyers – does not control agreement or disposal on breakdown. In-court family dispute resolution, if conducted by the court, must be done by trained judges; not on the hit-and-miss basis at present.

7 No fault divorce – divorce is an administrative process, not part of the court/litigation process; and this should be recognised, given effect to and – whilst on the subject – it should be made non-fault.

8 Protected individuals – or ‘vulnerable witnesses’, must be taken very seriously. It cannot be just one rule change, as now suggested by the witness working group. My response to the 31 July Interim Report of the working group is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/; and I urge my recommendations there as part of this manifesto.

9 Children law – the child sex abuse inquiry which is proceedings so falteringly can produce ideas (see eg https://dbfamilylaw.wordpress.com/2014/10/26/csainquiry-what-the-inquiry-must-consider/ ) for child protection law reform. It is urged to do so such as looking a child confidentiality, whether Working Together is working and so on.

10 ‘Transparency’ – The so-called ‘transparency’ debate is wrongly named (since it implies that a closed court is the starting point). Its real meaning is the extent to which family courts can lawfully made private – such as where children’s private lives are in issue. The present debate must be scrapped, the rules made lawful and privacy in family proceedings looked at in principled way. Any case starts from open court, and the law defines where privacy should start (and privacy will rule, most certainly, in many family proceedings).

FAMILY LAW REFORM: THE ROLE OF ARBITRATION

Adversarial family court process is bad: why?

There seems to be an assumption amongst many modern-thinking family lawyers, that all that is ‘adversarial’ in a court process is bad; and all that not is good. And what is ‘not’ adversarial is mostly defined in yet further negative terms (eg Resolution’s ‘keep it out of court’ campaign, mediation saves money. To crown this is the truly weird entirely negative concept ‘non-court dispute resolution’, conjured up – without any statutory foundation – at the threshold of the new ‘family court’. So the person whose family is breaking down – one of a couple, a child, a parent – have nothing positive save the fact of the curt process to hold onto. They are presented with no more than a default approach to the alternatives to family court resolution of parties’ disputes.

To connote adversarial processes as by definition to be avoided, as ‘bad’ is plainly jejune. It is those who operate the processes who may not do so benignly or the processes themselves which may be inefficient (and therefore expensive): that it a completely different point. Appreciation of those two factors is what drove SFLA in its early years; and which may have been lost sight of by Resolution and its negative spin on resolving disputes on family breakdown. Parties cannot always reach agreement; and some form of adjudication (arbitration, dispute resolution call it what you will) becomes essential.

Non-court dispute resolution: arbitration

Arbitration is included in ‘non-court dispute resolution’; and by some it is regarded as not ‘adversarial’ – yes really. For the resolution of family disputes it is a topic high on the agenda of family lawyers. Could it be the Holy Grail of the non-adversarialists; a positive means of non-court dispute resolution? I will try to avoid the obvious reply: that arbitration is the modern and Tory response to an issue: that reform can only occur in this area where the rich and slightly less rich are affected.

Unless you can pay for it (and perhaps for your own representation as well), you cannot take part in arbitration. To that extent it is economically regressive; and to his shame, as he watches his family court system totter amongst his idiosyncratic reforms, Sir James Munby P embraces arbitration. He fails to take up the democratic gauntlet on behalf of those who cannot afford to pay whom he should also – perhaps especially – represent.

Arbitration: how ‘adversarial’?

So: arbitration? Is it adversarial? Or, let’s face it, what is there about arbitration which is not adversarial?

I shall start from the assumption that all family arbitration is governed by Arbitration Act 1996, which it is. To my eye much of what the arbitration schemes under the 1996 Act embrace is derived – often word-for-word, as I read the Act – directly from common law adversarial processes (there is nothing new in that point, I am sure). The ‘general duty’ of an arbitration ‘tribunal’ (1996 Act s 33(1)) is that it ‘shall (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent’. ‘Putting [a] case’ and dealing with the case of your ‘opponent’, and of this being connoted with ‘fairness and impartiality’ is the meat and drink of an adversarial process; and none the worse for that, I believe, as a means of justly disposing of issues of fact and differences of opinion.

If it is properly prepared for, and properly case managed – and this is where parallel mediation can come in; pre-agreement of as many issues as possible before-hand – it can be done in a non-combatitive framework. Everyone has their say and they have confidence in the adjudicative process.

Of case management Arbitration Act s 34 goes on that ‘It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter’; and that such matters ‘include—

(c) whether any and if so what form of written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended;
(d) whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage;
(e) whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done;
(f) whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;
(g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law;
(h) whether and to what extent there should be oral or written evidence or submissions.

Where parties cannot reach agreement

Much of s 34 comes from case management style rules in Civil Procedure Rules 1998 and Family Procedure Rules 2010. It is designed for the management of adversarial litigation (a new litigation concept in the 1990s pioneered by family lawyers, but hi-jacked by civilians). And there are ground-breaking references to the arbitrator being able to take an inquisitorial role (at (g)). In truth, arbitration provides an option, provided you, the party, can afford it; and to pay for legal representation as well. So I do not oppose arbitration in principle: far from it. It offers true law reformers an example of a way forward.

For, in terms of law reform, it is the fact that a number of the lawyers who now promote arbitration in their younger days – 20 years or so ago – were very strong in trying to improve the nationalised system we have had since King Alfred’s days (in varying forms) for dispute resolution: namely the courts. That lead, pioneered by then in-situ judges, lead to the ancillary relief ‘pilot scheme’, rolled out nationally in 2000. That was available for all comers, regardless of colour, creed, gender – or, and here’s the rub – of means. Sir Peter Singer, a forceful arbitration advocate, only finds (in terms of their assets) that ‘Mr & Mrs Average’ (I wonder how ‘average’ Sir Peter would regard as ‘average’?!) can afford arbitration. Arbitration is privatised litigation. It is none the worse for that (in a capitalist society), provided – like private medicine – that you can pay for it.

If all reforming lawyers (including some of those involved in the new arbitration schemes) put their – our – backs behind working to improve the court system and its rule of family law, we’d soon see a fair and democratic system developing once more. One system for the rich and ‘average’ only, is not what I’d want to see as the end of 45 years of family law reform (I take 1 January 1971 (introduction of DRA 1969 and MPPA 1970, which became MCA 1973) as my start date).

To learn from arbitration ideas

But is anything to be learned from arbitration and the system under Arbitration Act 1996? By all means there is. Why should not parties in the state approved court system agree their own formal court procedure for a final contested court order? Already they are permitted to agree a final consent order (with court’s approval)?

Any contested order procedure would have to enable the courts to comply with their parens patriae duties under MCA 1973 s 25 and CA 1989 Sch 1 (I think at this stage of money; bit the same principles could apply to children proceedings). Case management would be a more openly co-operative process (chaired by a district judge) and within the parameters of Family Procedure Rules 2010 rr 1.4 and 4.1. This would be applied for by means of a heavily abbreviated (as against Form E) financial statement.

Parties could be told by the court that private parallel mediation was always available. Preliminary issues could be dealt with, perhaps often in writing, by the case management judge. Parties could set up their own process to lead to final court adjudication (with off-the-peg procedural models for parties not familiar with the processes or without an experienced family (or any) lawyer). The court over-views the process – always; and it is a crown-appointed judge who finally adjudicates. For preference I believe any final adjudication should be by a judge who is not the same as the case management judge. But, that said, no family should ever be dealt with by more than two judges (save in cases of sickness, retirement, death or recusal).

And I do accept that nothing is said here of the role – the plight? – of the litigant in person. Their needs must be factored into any law reform processes of the types outlined above.

MUDDLED LAW AND THE SET ASIDE JURISDICTION

Setting aside a consent order

MAP v RAP [2013] EWHC 4784 (Fam), Mostyn J (3 December 2013) http://www.bailii.org/ew/cases/EWHC/Fam/2013/4784.html shows how muddled the law can become – as between substantive law, procedure and practice guidance – if judges do not remind themselves where law shades into subsidiary legislation, and subsidiary legislation into guidance and judicial obiter dicta.

In this case the application was to set aside a matrimonial financial consent order. The law is provided for by Senior Courts Act 1981 s 17(1) (see below) as explained by Gohil v Gohil (below; decided since December 2013). FPR 2010 r 4.1(6) has nothing to do with the process; nor does any other subsidiary legislation immediately apply. As will be seen application to set aside is by appeal out of time (s 17(1)); or perhaps, as suggested by the Court of Appeal in Gohil, it may be that a separate application (perhaps under FPR 2010 Part 19) can be issued by the party seeking to set aside.

The background to the case was that, after a marriage of nearly thirty years, a wife claimed that she had consented to a financial order at a time when she lacked capacity to do so. She applied for permission to appeal to set aside the order. Mostyn J found that her appeal as to capacity was arguable and gave permission accordingly. If that appeal succeeded then the order would be set aside. Two areas were of concern to the court: the set aside procedure and capacity in the context of the case. Both points have since been considered by the Court of Appeal and Supreme Court respectively since December 2013.

However the judge made comments on aspects of the law which may be regarded as misleading, and therefore justify review here. He seems to treat Supreme Court authority as the opposite of what it said; and overlooked Court of Appeal (as explained below in relation to Re L-B and Roult).

Law, procedure and guidance

Mostyn J makes no reference to statute law; yet SCA 1981 s 17 provides for ‘applications for a new trial’ (and see commentary in Family Court Practice (the Red Book)) as follows:

17 Applications for new trial.

(1)Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2)As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.

This section governs set aside applications, as Ward J painstakingly explained in B-T v B-T [1990] 2 FLR 1, save where – as was the case in 1990 – Matrimonial Causes Rules 1977 made provision for county court appeals. In procedural law terminology a ‘new trial’ is to what the set aside issue is addressed: an applicant wants his/her order set aside so that a fresh trial of the issue originally resolved by the order (whether a consent order, as here; or following a contested hearing) can be arranged. And one of the disposals of an appellate court is to ‘set aside… any order’ or to ‘order a new trial or hearing’ (CPR 1998 r 52.10(2)(a) and (c)). Application to set aside and the related forms of appeal permission applications are explained in Family Court Practice (the Red Book) Part 1 at Procedural Guide E6.

Power to revoke a case management order

FPR 2010 r 4.1(6) under the heading ‘Court’s case management powers’ provides: ‘(6) A power of the court under [FPR 2010] to make an order includes a power to vary or revoke the order’.

The question of whether any jurisdiction under CPR 1998 r 3.1(7) (from which r 4.1(6) is directly derived) disposed of by the Court of Appeal in Roult v North West Strategic Health Authority [2009] EWCA Civ 444. At para [15] Hughes LJ reviewed the meaning of CPR 1998 r 3.1(7) and whether or not it could be treated as giving the court power to set aside its own order:

[15] … If [r 3.1(7) could be used to set aside a court’s own order], it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments…. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part.

Especially said Hughes LJ was this so in the case of a settlement reached with the benefit of full and skilled advice. ‘The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

Lady Hale confirmed this view in the Supreme Court in Re L-B (Reversal of Judgement) [2013] UKSC 8, [2013] 2 FLR 859 as follows:

 

[37]   Both [CPR 1998 and FPR 2010] make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and r 4.1(6) of the FPR. This may be done either on application or of the court’s own motion: CPR r 3.3(1), r 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which required the courts to led to the decisions in In re St Nazaire Company (1879) 12 ChD 88, [where the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judge’s orders]. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.

Notwithstanding that Lady Hale (though not in terms) follows Roult Mostyn J seems to derive a conclusion – ‘a challenge to findings of fact’ – which bears little relation to what she says (though he does not actually cite the passage in Re L-B to which he refers):

[17] …..Moreover, in the decision of the Supreme Court of Re L-B (A Child) [2013] UKSC 8, FPR 2010 r 4.1(6) was confirmed by Lady Hale as being the procedure by which a challenge to findings of fact would be made. And so it seems to me on that extended definition of the rule this application could quite properly be fought at first instance rather than by way of appeal.

He then goes on to cite a practice direction as ‘standing in the way’ of his perception of a Supreme Court finding (though still without reference to Roult (above) of which he was aware since it is referred to by Gloster LJ in ‘Cart v Cart’ to which he makes reference in para [18] below):

[17] … The only obstacle standing in the way of that are the terms of Practice Direction 30A para.14.1 which states:

“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged”.

And it is for this reason that the wife seeks to challenge this order which is described as being by consent by means of an appeal.

The reference to para 14.1 cannot stand in the way of the law; though in fact the final sentence of the paragraph (without citing it) accords with s 17(1).

Mostyn J then holds – to this extent he proceeds according to SCA 1981 s 17(1); though he cites the practice direction as authority for his finding – that an appeal was the correct route for Mrs MAP to follow:

[18] I am of the view that the appeal route is mandatory in respect of a consent order made by a district judge where there is no real challenge to the validity of the consent order per se. So, for example, if a challenge is being made under the famous case of Barder v Barder, then it seems to me that the Practice Direction fully applies and the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal called Cart v Cart.

Appeal or a separate application

Since MAP v RAP the Court of Appeal have considered the set aside procedure in Gohil v Gohil [2014] EWCA Civ 274 (at paras [43]-[50] and [57]-[60]); but then concluded that in Gohil itself the jurisdictional issue did not directly arise since they refused Mrs Gohil’s appeal. Obiter the court suggested that an applicant may only either (1) seek to set aside on appeal (s 17(1) above; B-T v B-T [1990] 2 FLR 1); or (2) apply by fresh action (de Lasala v de Lasala [1980] AC 546; Robinson v Robinson (Disclosure) (1983) 4 FLR 102 perhaps under FPR 2010 Part 19).

In any case, said McFarlane LJ, there must be a staged process (at para [55]) in relation to non-disclosure applications:

  • ‘Gateway evaluation’: a judicial consideration of whether there is evidence to justify hearing a set aside application. The Ladd v Marshall [1954] 1 WLR 1489 guidelines (was there credible evidence which could not have been before the court below etc) would provide ‘sensible structure to evaluate any fresh material’.
  • The Livesey test: this involves assessment by the court, in the light of such admissible evidence as there is and by the ‘standard and the burden of proof applicable to a finding of fraud’ (1) whether there had been non-disclosure and, if so, whether (2) ‘it had been material to the proceedings that had been previously determined’ (see eg Sharland v Sharland [2014] EWCA Civ 95).

Capacity

In MAP v RAP the issue on which set aside would be decided was Mrs MAP’s capacity. For that she has permission to appeal – that is, in effect, permission to seek to set aside the order. The subject of capacity and its basis for setting aside an order must await another day.

The statutory position is clear: an application proceeds by appeal under SCA 1981 s 17(1) (and see Roult: a set aside application cannot go back to the judge who made the original decision). It may be that application can be made by fresh application.

Post-script: at para [18] Mostyn J refers to ‘Cart v Cart’ as follows:

[18] … the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal – called Cart v Cart [2013] EWCA Civ 1006.

That was a case in which I represented the husband appellant; and as Mostyn J correctly says, Gloster LJ refused permission to appeal so the case is authority for nothing. It is true to say that Gloster LJ referred to FPR 2010 r 4.1(6) in the following terms:

[37] It cannot be said that, in relation to his ground relying upon an alleged Barder event, Mr Cart was not appealing at all, but rather asking the county court to set aside its own order pursuant to FPR 2010 r 4.1(6); and that, accordingly, all that Mr Cart was doing was seeking permission to appeal the refusal to do so by the county court. Not only does Barder itself make it clear that the correct characterisation of the process is an appeal; but also this court has made it clear in Roult v North West Strategic Health Authority [(above)] that, in circumstances where it is alleged that a subsequent unforeseen event has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR 3.1(7) (the CPR rule providing that a judgment or order may be set aside).

Lest it be thought that Mr Cart may have suggested that r 4.1(6) applied, I can assure anyone who is remotely interested in this relatively narrow subject: I would not have suggested it to Gloster LJ (she raised it herself). I have studied the point exhaustively over the past three years and I am well aware of what the Court of Appeal had said in Roult.