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7.14 pm
Mr. Peter Kilfoyle (Liverpool, Walton) (Lab): I am very pleased to be able to bring this somewhat esoteric subject of ex parte applications in the family courts for consideration in the House. Ex parte applications are now known as without notice applications, and, effectively, only one side of the argument is presented in the courts when a particular type of order is sought from the courts. I believe that to be particularly acute in the family courts at the moment and would pray in aid an article written by two district court judges, published in the Law Society Gazette of 22 May 2008. That date is getting on for two years ago, so it is not as if it is a new problem-it is a long-standing one. The two judges were Judges Stephenson and Gerlis, and the article was entitled, "Abusing the system". I believe that this is an abuse of the system.
I was prompted to raise this subject, initially, for two unrelated reasons. First, a celebrated local lawyer in Liverpool, Mr. Rex Makin, had written his usual diatribe in the local newspaper. On that occasion, not for the first time, he was attacking members of the legal profession. He complained, with great cause, about the increasing and frivolous use of ex parte, or without notice, applications before our courts. That also brought to mind a case with which I was involved, to which I shall refer, which I have taken up with the Minister in the past. I would obviously not wish to identify the people involved, but it is a good example of what happens. I shall refer to them as family A-Mr. and Mrs. A-to give a flavour not only of what happens when this abuse of the system takes place but of what happens subsequently, when the layman or woman, perhaps somebody like myself, tries to find out what the process is.
Some time ago, Mr. A left the family home late one evening and took the only child of the marriage with him. Obviously, that is a sad incident that repeats itself in many families and homes across the country when there is a breakdown or potential breakdown in a relationship. The highly distressed mother of the child, quite naturally, sought legal advice the following day. Critically, she had to pay in advance-let us be fair, people get nothing for free from the lawyers-for the solicitor to write a letter to the estranged husband at his parents' home, where he had gone with their child.
That same Friday afternoon, unbeknown to the wife and mother, her husband had filed several applications for orders through his solicitor. It has become commonplace for this to occur up and down the country. The applications were for a prohibited steps order, a residence order and an occupation order. The net effect of those orders, if they had been granted, would have been that the mother would have been on the street and isolated from her only child. That is the fact of the matter, but for whatever reason-I choose my words carefully-the judge saw fit only to give a prohibited steps order. It was put in place for one week until there was a full hearing of Mr. A's application. That was done ex parte-that is, Mrs. A had no idea that these decisions about her only child were being made.
A week might not seem a very long time from the perspective of a place like this, but to the mother of a five-month-old baby, it is a cruelty beyond measure, because a week seems like an eternity. When such orders are granted without her knowledge, she is left in a vacuum of ignorance, at least for a while. When she was informed, it was by a process server, late that evening. Anybody with any experience of the law in the towns and cities of this country knows that a person's ability to obtain legal advice over the weekend in one of our provincial cities, unless that person has a regular solicitor and lots of money behind them, is virtually impossible. She was left in total ignorance about what could be done.
I was very interested when I saw the forms. The form used for an occupation order has a box to be filled in if an applicant-Mr. A in this instance-wishes to have the application heard ex parte, and Mr. A, or his solicitor, had ticked this box. The box has a rubric, saying:
"The reasons relied on for an application being heard without notice must be stated in the statement in support."
I therefore went through both order applications. Form C1 for the prohibited steps and residence orders has a section 13 in which was printed a series of unsubstantiated allegations about Mrs. A's mental health. These were repeated in an affidavit accompanying the occupation order application. Nowhere, however, was there any written argument as to why the application should be heard, as a matter of urgency, ex parte.
I thought to myself, "Well, perhaps that argument was put orally." That is not unknown; when we look at the literature, we find it is sometimes done over the telephone-it is done by solicitors under the old pals principle within the legal fraternity, but in my view that denies a basic principle of justice. In the case under discussion, however, if that argument was put orally to the judge, there is no record of it. I found that extraordinary, and I was not alone: two judges have since remarked on that fact in subsequent hearings of the family A case. After all, there are only three reasons why a judge might rule in favour of an ex parte hearing: if there is a risk of harm to the applicant or child from the respondent; if otherwise the applicant would be deterred from pursuing the case; and if otherwise the respondent-Mrs. A-would simply evade the court proceedings. She clearly would not do that, however, as she did not know anything about them.
I know the actors in this drama, and it would take a persuasive case to convince anyone that Mr. A-a 6 feet 2 inches tall, 18 stone, rugby-playing man-would either be intimidated or put off from pursuing the case by anything his wife might say or do. I went through the statements, and the only reference I could find to anything that might be taken as even remotely hostile or aggressive was his claim that his wife was
"abusive and shouting, and waving her arms around...goading me into hitting her".
For that reason, he was somehow deemed worthy of getting an order in his favour at this ex parte hearing.
The criteria for ex parte hearings were, in general, designed to protect abused women, rather than abusive men, but the judge in this case clearly did not think so-or was convinced by Mr. A's solicitor. We will never
know for sure about that, however, because there is no record. I tried to find the record of what transpired in this case. I looked at the document bundle, and there was nothing in that, so I tried, on behalf of Mrs. A, to get this phantom record via Her Majesty's Courts Service. Its flat response to my inquiry was that Mr. A's affidavit
"explains why Mr. A felt the need to apply for an urgent order".
That is wholly untrue, and wholly unhelpful. That organisation has insisted to me that it followed the administrative process, which is its role, and that the decision was down to the judge. I am very well aware of that fact, but it can give me no rationale as to why the case was heard ex parte. There must be a record of this somewhere, and I would love to see it.
I was advised to contact Sir Mark Potter, president of the family court, to whom I expressed my misgivings in writing. He told me there were three means of redress in these circumstances. One was an appeal, and another was a complaint for misconduct by the judge other than a wrong decision. How can we complain, however? We have no idea what his decision was, so what is there to complain about? Also, how can anyone appeal when they do not even know that the action has taken place until halfway through the period of time in which the child is taken away-from the mother in this case? Even if one wanted to appeal, one cannot appeal against a wrong decision.
I understand that in 2006-07-I only have the figures for that year-two complaints were upheld out of the 938 complaints made against judges. That tells us how much accountability m'learned friends in that high office have. It seems that judges have power without responsibility to anybody but themselves and one another.
I saw no light down that tunnel, so I took my case to the Office for Judicial Complaints, which said that if the judge had used
"profane, sexist or racist language",
he had a problem, but a judicial decision could be challenged only by appeal to a higher court. I understand that, of course. No bureaucracy is going to set aside the decision of a court, but what chance has a poor woman, especially a stranger to the legal system? How would she know where to begin to have a decision reversed, when she is already in emotional turmoil because of what has happened? No doubt she could have a judge disciplined for being politically incorrect, but where would she get the money to obtain the advice to turn over a wrong decision on a weekend in the provinces?
My next port of call was the Judicial Studies Board, the fourth agency approached in my search for enlightenment. I wanted to know what guidelines related to ex parte applications. I was told:
"You are right in thinking that the law and procedural rules will place certain obligations and requirements upon applicants"-
in the case of ex parte hearings. But when I pursued that, I was told:
"However, these are not set by the judiciary and hence you will need to direct your enquiry elsewhere."
Where that is supposed to be, goodness only knows. There is no hint where that might be; there is simply some platitudinous advice on trusting solicitors and counsel. I would as soon entrust myself to a shoal of piranha as entrust myself to the legal fraternity on these matters. In the experience of many of us, they are thoroughly self-serving people.
The Judicial Studies Board did concede, however, that the courts
"require evidence to be provided, to support the reasons for the application, evidence in support of the application, and a full and frank disclosure of all relevant matters which are required for the Court to be able to assess the merits of the case."
Fine words-I could not have put it better myself. Yet back in the real world, what is happening, I am sorry to say, is that solicitors and judges on a Friday afternoon around the country, on a regular basis, are denying justice to men and women. In the case that I described, I clearly believe that the woman is in the right and the man is in the wrong, but it does not affect just men as opposed to women, or vice versa. It depends who gets in first.
It is a sine qua non of justice that people have a right to be heard, other than in the most extreme circumstances. It has become a matter of habit that people are denied the right to be heard by the frivolous use, or abuse, of the system in order to get ex parte hearings. If there are sound reasons for an ex parte hearing in line with section 45 of the Family Law Act 1996, so be it. We all recognise that there are extreme circumstances in which an ex parte hearing is right, proper and unavoidable. For example, if somebody has disappeared, gone abroad or cannot be traced, what alternative is there to an ex parte hearing? But in the present case it is an abuse.
It cannot be right that there should be an old pals act between lawyer and judge, casually agreed late on a Friday afternoon when they are all anxious to get away, to suit the convenience of everyone involved except for the bewildered, shocked and sometimes traumatised respondent. That cannot be right. I know that the Minister is fair-minded. I urge her to look urgently into how we can prevent this abuse. It has gone on far too long, it is happening far too often, and it does not serve the reputation of anyone involved if it is allowed to continue.
7.29 pm
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I congratulate my hon. Friend the Member for Liverpool, Walton (Mr. Kilfoyle) on securing this debate on a subject about which he is clearly passionate. It affects people at a most vulnerable time in their lives, and I know how strongly he feels about the way in which private disputes concerning children are resolved in our court system.
The way in which ex parte relief is obtained in family proceedings varies widely. I am not sure that that is any comfort to him, and I would like to see more consistency, too, but safeguards usually minimise the drastic effects that such orders can have. In particular, in all ex parte applications it is likely that article 8 of the European convention on human rights, on the right to respectful private and family life, and article 6, on the right to a fair hearing, will be engaged for many if not all the parties-and the courts have to pay full regard to the parties' convention rights.
For a few minutes I shall talk in general terms about ex parte applications, and then I shall consider how we might move the issue forward.
Mr. Andrew Pelling (Croydon, Central) (Ind): I declare an interest as a user of the family justice system. Is it possible for the Minister to explain how both parties' human rights are observed when ex parte is used so frequently?
Bridget Prentice: I shall come on to that point in some detail. My hon. Friend gave some examples of occasions when ex parte applications have to be heard. Sometimes it is because the individual cannot be found, but more often in domestic violence cases, it is because an abused woman needs the protection of the courts speedily. Generally, applications are heard with neither party in attendance, although that situation would be exceptional in private law applications, especially those in respect of children. Under the Children Act 1989, the court is required to make the welfare of the child its paramount consideration whenever it determines a question about the upbringing of a child. Normally, therefore, a court will have to weigh up the evidence of both parents; sometimes, to assist the court in making that decision, it may receive a report from the Children and Family Court Advisory and Support Service.
The court should make an order only if it considers that to be better for the child than not making an order at all. Unfortunately, it is not possible to identify from court statistics the number of private law applications that are heard ex parte under the 1989 Act, but the courts take the view that only in exceptional circumstances should orders be made without all parties being present. However, in answer to one of my hon. Friend's queries, I should say that there are occasions when the court is presented with a situation in which an immediate decision must be made to secure the safety and security of the child. But there would need to be a compelling reason on welfare grounds to change a child's residence on an ex parte basis. That situation may arise if there are unexplained injuries that the child claims have been inflicted by the partner of the parent with whom the child lives. The court would then have to make an immediate decision to safeguard the child's welfare.
Generally, the court directs that any order that it makes will be effective only for a short time, and that all parties should then attend the full hearing-usually after seven or 14 days. However, I accept my hon. Friend's point that for a mother of a five-month-old child, seven days is a very long time. It is a very long time in the child's life, too, and that should be taken into account as well. Alternatively, the court might make the order subject to granting other parties the power to apply to vary the order at short notice.
The court rules require the applicant to serve the section 8 order application within 48 hours of making the order. They also provide that the application is to be filed when the application is made, unless the hearing is by telephone, in which case the deadline is 24 hours after the application is made.
Courts are aware that making a decision without hearing from both parties carries considerable risks, so they should take steps to ensure that the order can be reviewed at the earliest stage possible. I was interested in what my hon. Friend said about the legal representation in the case that he cited. There is also a high duty owed to the court by the advocates making the application without notice. They have to make the fullest disclosure of all the material facts, including any defence that they have reason to anticipate may be advanced. Where one of the parties is not able to attend the court, the court will have to make the order subject to freedom to apply to vary or revoke the order should the individual who is unable to attend subsequently be able to do so.
Let me turn to how abuse of process might be avoided. I have to say to my hon. Friend that there are no general fixed rules that have to be applied. Justice Munby said in a case in 2001:
"The circumstances in which ex parte relief is obtained in the Family Division vary very widely."
He goes on to set out a form of guidance, which he says is not a "set of inflexible rules" because
"Circumstances alter cases and, in the final analysis, every case must be considered on its own facts".
However, the general features that can be determined are that there must be compelling reasons why notice cannot be given. For example, where the case involves children, a compelling reason might be that the child's welfare would be compromised if a parent were alerted in advance of the application. There must be a genuine emergency. Lack of information itself-this is key in my hon. Friend's case-does not justify an emergency. The applicant must give candid and frank disclosure of all the circumstances known to them and, as I said, the advocates are under a high duty to the court. Justice Munby said:
"Unparticularised generalities will not suffice"
for an ex parte application. Those are some of the issues that need to be in the minds of the courts when they are hearing ex parte applications.
I appreciate my hon. Friend's concern about the position facing people affected by the orders who feel that the courts have not treated them fairly, and I hope that I have given some indication-
Mr. Pelling: Will the Minister give way?
Bridget Prentice: I will give way to the hon. Gentleman, but I am conscious of the time.
Mr. Pelling:
I will be very brief. There was a most welcome written statement today from the Ministry of Justice and the Department for Children, Schools and Families about the family justice review. Would that
review be able to consider the important concern that has been raised by the hon. Gentleman?
Bridget Prentice: I will have to think about whether it would be appropriate for the review to do that. I promise the hon. Gentleman and my hon. Friend that I will look into that.
As my hon. Friend knows, I was in touch with the president of the family division about this case when he raised it with me before. At that time, the president felt that no further guidance was needed. I will go back to him and ask him to look at it in more detail. I know that he expressed some sympathy with the situation that my hon. Friend put to him.
There is considerable judicial opinion that ex parte applications should be used only in exceptional circumstances and that they should normally be heard on notice. I will ask officials to see whether they can find out whether there is a systematic exercise going on whereby some advocates are using Friday afternoons to make an application, in the full knowledge that it makes it very difficult for the respondent to have any opportunity to make a response. I will also raise the matter with the president of the family division in case further guidance is needed on that issue, as well as in general. I hope that in doing that, I will give my hon. Friend some succour in the idea that I am taking on board the difficult circumstances that he has outlined.
I hope that the situation in which my hon. Friend's constituents found themselves is unusual, but if it is not, I assure him that the Ministry of Justice will make all possible representations to ensure that it does not continue to arise, and that ex parte applications are heard as they are meant to be heard. We will ensure that applicants and respondents have the opportunity to make their case and that children are not removed from a family home or a parent with care without proper consideration and investigation of the circumstances surrounding them.
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