Weekly Family Law Update April 21, 2021

Rules, costs and Cafcass figures

Former President criticises lawyers not complying with rules

The former President of the Family Division Sir James Munby has severely criticised lawyers for failing to comply with rules in lengthy family court cases.

Sir James retired in 2018 but still sits as a judge on certain cases. At the end of a recent judgment he commented both upon the failure of lawyers to comply with rules and the amount of legal costs run up by the parties “in preliminary skirmishing about jurisdiction”.

The case concerned an application by a mother for financial provision for her daughter from the father. The mother is citizen of Finland, the father is resident in Monaco, and the child was born in France. The hearing related to the issue of whether the English court had jurisdiction to hear the application. There are also proceedings in Monaco and France.

Sir James explained that the costs of the proceedings in England alone amounted to £300,000 for the mother and £591,000 for the father. These figures led Sir James to conclude his judgment by asking: “Can nothing be done to prevent or at least ameliorate the folly of these huge and expensive cases that litigate about where to litigate?”

Sir James was also highly critical of the failure of the lawyers in the case to prepare a bundle of documents that complied with the court rules, which were written in the year 2000. He said that documents being relied upon by the mother and father during proceedings, such as text messages, tenancy documents, bank statements and party correspondence, were scattered throughout the bundle, which was marked with a ‘defective’ index. Documents were duplicated, and others were not relevant to the case.

Sir James called the bundle ‘chaotic’, and said: “How many more years – decades – have to pass before those who ought to know better, and who, as in the present case, are being more than handsomely remunerated, comply with their obligations?”

Latest Cafcass figures for children cases

The latest figures for public law (including care) applications and private law demand (mainly child arrangements applications), for March 2021, have been published by the Children and Family Court Advisory and Support Service (‘Cafcass’), the organisation that looks after the interests of children involved in family proceedings.

In that month Cafcass received 1,612 new public law cases, featuring 2,555 children; this represents an increase of 13.4% (190 public law cases) and an increase of 11.3% (260 children) on the 1,422 new public law cases received and the 2,295 children on those cases in March 2020.

As to private law demand, Cafcass received 4,659 new private law cases in March 2021, which is 1,282 cases (38.0%) more than the same period in 2020. These cases involved 6,627 children, which is 1,489 (29.0%) more children than March 2020.

Both of these increases clearly appear to be linked to the fact that the first national lockdown occurred in March last year, which would have meant that the figures for that month were much lower than normal.

Couple criticised for ‘ruinous’ costs

A judge hearing a financial remedies case has criticised a couple for running up ‘ruinous’ legal costs, despite a warning from him earlier in the proceedings that if they did not settle they risked incurring costs that were disproportionately high relative to their assets.

In the end the costs that the couple ran up were so high that they were left with negative assets, to the tune of £57,000. The wife’s costs alone were £61,000.

This led the judge to comment: “The level of costs in these proceedings has been ruinous to the parties. It is utterly disproportionate to the assets involved … Issues have been pursued which did not merit any significant expenditure of costs. Warnings as to the costs being incurred have gone ignored.”