In the case of B-v-A  EWHC 3127 (Fam) Mr Justice Charles delivered a Judgment on 10 December 2012 which is worthwhile bringing to the attention of practitioners.
This case provides practitioners with a reminder of the correct procedure to be used when making without notice applications and the continuance of Tipstaff Orders.
Before this case, recent guidance on without notice relief was given by Mrs Justice Theis in KY v DD (Injunctions)  EWHC 1277(Fam)  2 FLR 200
Clear guidance was also previously given by Mr Justice Munby (as he then was) in both Re W (Ex Parte Orders)  2 FLR 927 and Re S (Ex Parte Orders)  1 FLR 308 and by Mr Justice Charles in B Borough Council v S & Anor  EWHC 2584 (Fam).
In this case Mr Justice Charles stated that there were "endemic failures by practitioners and Judges in the Family Division to apply the principles and procedures relating to without notice applications."
Essentially a father made an application under The Hague Convention for a return of the parties' child to the United States. He applied for without notice relief, initially under the belief that the mother and child were in the jurisdiction. A location Order was granted and disclosure Orders were made. Several hearings took place and further disclosure Orders were made. The mother and child were not located and eventually the father applied for and was granted a continuation of the location Order on an open ended basis. The proceedings were adjourned generally.
The open ended location Order was obtained without any evidence having been filed in support of that particular application. There was only ever one statement filed at the beginning of the case. Information from the father's instructions was either conveyed in position statements or in submissions by Counsel for each hearing following the initial hearing without reference to how that information tied in with the earlier information contained in the statement. Eventually the mother was stopped coming into the jurisdiction without the child some time after the proceedings had been adjourned as a result of the continuance of the Location Order. It surfaced that the mother and child had not been in the jurisdiction at the time that the father believed them to be when he issued the proceedings. A wasted costs Order was made in respect of the father's solicitors for not compiling with the principles and procedures for the making of without notice applications.
Whilst practitioners are often put under huge pressures by their clients to act urgently in child abduction and potential child abduction cases to, for example, locate children, this case highlights the need for practitioners to exercise the utmost care and due diligence when making without notice applications and the need to scrutinise instructions received from the client to assess whether the information adds up. It is a natural inclination for practitioners to be cautious when a client fears, for example, that a child is about to be wrongfully removed from the jurisdiction, but it is particularly important that the correct procedure for without notice applications is followed when Tipstaff Orders are sought given that they can lead to a deprivation of liberty without further Court involvement.
So just some of the points for practitioners to be mindful of when making without notice applications are:
- Always analyse the instructions from the client and look for any independent evidence available to assess whether a without notice application is justified. Support the application with appropriate evidence.
- If possible, try and have your client at the without notice hearing in case the Judge wishes for more information over and above what is contained in the papers before making a decision.
- Always provide the evidential and other persuasive materials used to obtain a without notice order to the Respondent as soon as practicable.
- Prepare a proper and full Court attendance note of what was put before the Court and said to the Court and serve this on the opponent.
- A balanced, fair and particularised account of events leading up to the application should be provided to the Judge.
- If Tipstaff Orders are obtained, regularly review the justification for them to stay in force.
- Be conscious that updating statements following the initial one may be required if the case requires a need to return to Court on several occasions to for example to obtain disclosure Orders and locate a child.
Mandeep Gill is an Associate Solicitor at The International Family Law Group LLP in Covent Garden, London. Her particular specialism is in complex international children cases. Mandeep can be contacted on Mandeep.firstname.lastname@example.org.
The International Family Law Group LLP in Covent Garden, London. Her particular specialism is in complex international children cases. Mandeep can be contacted on Mandeep.email@example.com.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.