By Emma Nash
It is a common question asked during private family matters, especially when there is a high level of conflict: 'Will my dispute need to go to Court?'. Our Family Partner Emma Nash explains why it is not always advisable for legal teams to take this route, and looks at the alternatives to going to Court, to reach a favourable outcome for all parties.
Court is a last resort
When it comes to family law especially, it is often said that going to Court is the absolute last resort and that every effort will be made to resolve matters by agreement. However, that can be difficult, especially where conflict and emotions are running high, and any concession can feel like admitting defeat. But, as was seen with a recent case in the Family Court in Bristol, whereby the Judge was considering an appeal of a decision made by a Legal Advisor for the disclosure of 5 years' worth of medical records of the mother, every effort should be made to settle disputes outside of Court.
In this particular case [Re B (A Child) (Unnecessary Private Law Applications)  EWFC B44], the Judge made it very clear, much to the embarrassment of the representing parties, that certain matters should always be resolved outside of Court and by not doing so amounts to, 'an inappropriate use of limited Court resources.'
Inappropriate Court applications
With the case in Bristol, His Honour Judge Wildblood QC went on to publicise his judgment, although he was quick to clarify this was not related to the legal issues of the appeal. Instead, he wanted, "to highlight the extent to which Court lists are being filled by interim private law hearings that should not require Court involvement." In short, the legal parties involved should have sought a means to resolve these differences away from Court. But this begs the question, 'What counts as an inappropriate Court application?'. The Judge helpfully gave the following examples,
- At which junction of the M4 should a child be handed over for contact?
- Which parent should hold the children's passports?
- How should contact be arranged for a Sunday afternoon?
It appears there have been many more similar examples from other judges, and time is being called for common sense to prevail. So much so that in his judgment, HHJ Wildblood QC said that if such matters were litigated then "criticism and sanctions" may follow.
Interim private law hearings
As HHJ Wildblood QC spelled out in his judgment, Courts are being filled with interim private law hearings, which could and should be dealt with elsewhere, unless it is absolutely impossible to do so. By 'private law', this means a case which has been brought about by a private individual, usually a parent of the child in question. This differs to a public law case, which involves a local authority, and which might see for example, an application for a care order. And in respect of an interim hearing, this refers to a hearing in Court prior to the final hearing or conclusion of a matter. They are usually requested to address an issue that needs to be resolved before the matter can proceed, for example, disclosure of evidence (as in the Bristol case).
It might be surprising to learn that there are boundaries for taking interim dispute matters to Court, especially in private law proceedings. But by outlining the example in Bristol, it is clear that everything must be done to try and settle disagreements away from Court when appropriate. A good family lawyer will do this and make clear to all parties, the consequences of taking the matter before a judge.
Alternatives to Court
So, how do we manage those cases where even the smallest of issues is impossible to resolve without a third party stepping in to assist? Well, there are alternatives by way of out of Court dispute resolution services, and it is important your legal team consider them, particularly in light of this recent judicial warning.
Mediation is a helpful tool, but it is not always appropriate, particularly if there have been allegations of domestic abuse.
Arbitration is another option. It can be used to resolve many family matters in dispute, including smaller issues such as those outlined by HHJ Wildblood QC. Arbitration involves a third party selected by the parties (usually a practising barrister or judge) who will consider the issues and make a binding decision. The parties are in control of the arbitration process and it may even be possible to have the matter resolved without the need to attend a hearing. Yes, the parties will have to meet the costs of an arbitrator, but when you consider how much more the costs can be when it comes to a Court hearing, arbitration could be a more cost-effective process. It is certainly a quicker, and less stressful way of reaching an outcome for the parties involved. And it avoids taking up precious Court resources.
Emma Nash is a Partner in our Family Law Department, specialising in all aspects of family law. She has particular expertise in matters with an international element, but can also on complex financial disputes, private children cases, cases involving allegations of domestic abuse, paternity disputes, and paternity fraud.
Contact Emma at Emma@fletcherday.co.uk.