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Judiciary continues to clamp-down on non-compliance

Date:10 FEB 2015
Recent cases have shown an increasing dissatisfaction amongst the judiciary with non-compliance with court orders. The President of the family division, Sir James Munby, has been particularly vocal in his concerns about non-compliance. In Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 FLR 1266 the President stated that failures of parties in proceedings to comply with orders was'unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated'. This reinforced the earlier position of Lord Justice Ryder in Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431 and was followed by later decisions such as that of Mr Justice Keehan in A Local Authority v DG and Others [2014] EWHC 63 (Fam), [2014] 2 FLR 713 of Mrs Justice Theis in Kent County Council v C, G and A [2014] EWHC 604 (Fam), [2015] 1 FLR 115; and the later decision of the President in Re W (Strict Compliance with Court Orders) [2014] EWFC 22, [2015] 1 FLR (forthcoming) in which he referred to the 'lamentable failure' of the local authority in the case to comply with court orders.

The courts have been clearly indicating that they will no longer tolerate non-compliance and no more is this demonstrated than in the 2015 decision of Northamptonshire County Council v AS and Others [2015] EWHC 199 (Fam).

In that case, Mr Justice Keehan considered the 'lamentable' failures of the local authority and stated that 'the Family Court will not tolerate a party, let alone a public body charged with the care of so very young a child, ignoring court orders'. The failures of the local authority included:

  • Accommodating a 15-day-old child with the mother’s purported s 20 consent but without the use of an interpreter; the mother being of Latvian origin. Mr Justice Keehan said in his judgment: 'I question how effective that consent was when it was sought without the mother having the benefit of an interpreter.'
  • Appointing a young and inexperienced social worker to deal with a case involving a very young baby, and then not offering any support to the social worker in the proceedings despite the need for this support being identified.
  • Failing to issue proceedings promptly. The child was accommodated in January 2013, the decision to issue was taken in May 2013, but the proceedings were not actually issued until November 2013.
  • Failing to manage the proceedings and file evidence promptly.
In that case, the child's Guardian and the mother issued proceedings for breach of their Article 6 and Article 8 rights, which were conceded by the local authority and damages agreed in the sum of £12,000 for the child and £4,000 for the mother.

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However, the real impact of the judgment in this case is not the damages awarded against the local authority or the willingness of the court to take action for non-compliance by parties. In fact, the major impact is on the parties concerned in the case; the mother and the child. As Mr Justice Keehan said in his judgment:

'[35] The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They would be serious enough in respect of an older child but they are appalling in respect of a 15 day old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority.

[36] The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

[37] The accommodation of [the child] under a s.20 agreement deprived him of the benefit of having an independent children's guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.

[38] I trust that the events of the first 23 months of [the child’s] life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so.' Compliance with court orders is likely to remain a hot topic for the judiciary and the very real impact of non-compliance cannot be ignored.'

Compliance with court orders is likely to remain a hot topic for the judiciary and the very real impact of non-compliance cannot be ignored.