A mother appealed the case-management decision made by a Legal Adviser that medical records relating to her for a period of 5 years should be disclosed into the case. HHJ Wildblood QC dealt with the substantive appeal in a Judgement that found the Order for disclosure to be unnecessarily and disproportionately invasive of the mother’s right to respect for her private life.
He then released a further Judgement for publication in which he highlighted the extent to which court lists are being filled by interim private law hearings that “should not require court involvement”. The Judge warned that the Court lists in the area for which he is the Designated Family Judge are severely over-filled with the numbers of both private law and public law cases having increased considerably since January 2020.
The Judge gave the following examples of “similar requests for micro-management” that had arisen in front of him in the past month: (i) At which junction of the M4 should a child be handed over for contact, (ii) which parent should hold the children’s passports, (iii) how should contact be arranged to take place on a Sunday afternoon,
Concluding that “if common sense had prevailed it would not have been necessary for the legal adviser to determine the issue at all and, when faced with the erroneous order, common sense could have led to the avoidance of this appeal” the Judge sent this message:
“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.”
Whilst the Judge made it clear that he was not giving guidance on the issues he raises and that it is not for him to do so he highlights that in his area the courts are already struggling to accommodate the listed work. Practitioners and court-users from all over the UK will be keenly aware that the pandemic has compounded the difficulties that were already being encountered prior to this years’ lockdowns.
Mediation as an alternative to Court
The Judge specifically mentions mediation which has long been available for parties to try to resolve their differences in relation to arrangements for their children. Mediation is a very flexible process and whilst some clients choose to attend sessions on their own it is also possible to include solicitors (with the agreement of both parties). Within mediation there is an emphasis on the voice of the child being heard and mediators who are trained to consult with children can be involved in the process to speak to the children and try to ascertain their views. Hybrid mediation is also becoming increasingly popular. This is a form of mediation that is based on the “caucus model” allowing a mediator to meet with clients and their lawyers both as a group and also within their separate caucus’.
For more information about family mediation please see our website.