B v A
| Jurisdiction | England & Wales |
| Judge | Mr Justice Charles,Charles J |
| Judgment Date | 10 December 2012 |
| Neutral Citation | [2012] EWHC 3127 (Fam) |
| Docket Number | Case No: FD11P2440 |
| Court | Family Division |
| Date | 10 December 2012 |
[2012] EWHC 3127 (Fam)
The Hon Mr Justice Charles
Case No: FD11P2440
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hearing dates: 10 September and 12 October 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This case has been before five judges in the urgent applications list of the Family Division of the High Court. In general, this list is before a different judge each week. On the first four occasions it was heard without notice to the Respondent. The proceedings were brought by the Applicant in reliance upon the Child Abduction and Custody Act 1985 (the 1985 Act) and the Hague Convention. The Applicant was seeking an order for the return of the child of the parties to the United States.
First, and before the proceedings were issued, the application came before an experienced circuit judge sitting as a High Court Judge who made a location order. Since then I am the fifth judge of the Division who has dealt with the case. When the matter first came on before me, the Applicant was still seeking to pursue his application under the Hague Convention and the 1985 Act for an order for the return of the parties' child to the United States. However, after the short adjournment, his counsel informed me that he was instructed to withdraw or seek a dismissal of that application, with the result that the only live issues relate to costs. At that stage, no application for a wasted costs order had been made against the Applicant's solicitors, but the possibility of one being made had been raised in correspondence, and in submission. Such an application was made over the adjournment of the hearing with the result that I now have to deal with applications made by the Respondent for costs against the Applicant and for a wasted costs order against the Applicant's solicitors. These applications are resisted.
As will appear later, significant parts of the grounds relied on to support such applications for costs reflect endemic failures by practitioners and judges in the Family Division to apply the principles and procedures relating to without notice applications.
I would like to record that:
i) in my experience, the counsel and solicitors in this case are among the better practitioners who hold themselves out as specializing in cases of this type, and I recognise that
ii) the endemic nature of the failures in this case to comply with the relevant principles and procedures has the consequence that it can be said that it would be harsh to pick on particular practitioners for criticism or to penalise them or their clients in costs as the Respondent, through her advisers, asks me to do, and
iii) "Pot and kettle" spring to mind and this is confirmed by the failure of the Respondent's solicitors to have proper regard to the relevant authorities and rules in the preparation of their application for a wasted costs order.
For these reasons I have decided not to identify the solicitors and barristers in this judgment.
A location order
A location order was granted and continued in this case. It is one of a number of orders directed to the Tipstaff, the Respondents and other people served with them. Other such orders are Collection orders and Passport orders. Standard forms of such orders exist but they can be tailored to meet individual cases. They are served by the Tipstaff or, at his request and instruction, by the police. They can result in service by the police at residential addresses at any time of day or night, or by police at ports. They confer a power of arrest if a person served does not, in the view of the Tipstaff or the police, obey the order (e.g. as to handing over travel documents or providing information concerning the whereabouts of a child). They also provide for a port alert to be entered at the instance of the Tipstaff. As the names indicate, a location order is primarily directed to finding a child and then keeping that child in the jurisdiction, a passport order is primarily directed to obtaining travel documents and keeping children in the jurisdiction, and a collection order is primarily directed to finding and handing over a child. As is common, the location order in this case contained (a) an order that all passports of the child and the Respondent were to be handed over, (b) injunctive relief preventing an application being made for a passport for the child or the Respondent and (c) injunctive relief preventing the removal of the child from England and Wales and a change being made to the place where the child was living at the time the order is served. The location order did not include an injunction preventing the Respondent from leaving England and Wales (which can sometimes be included) but the practical effect of her having to hand over her passport (and, probably the injunction relating to the child, if she was with her) meant that the location order provided that the Respondent could not leave England and Wales.
Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that:
i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival,
ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and
iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.
The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young [2012] 2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).
Without notice relief
Recent guidance on this can be found in KY v DD (Injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200. In that case, Theis J refers to and cites from two decisions of Munby J (as he then was) and one decision of mine. The case related to a child and involved the making of a passport order. It confirms the need for caution, care, rigour and close scrutiny in respect of applications for and the grant of Tipstaff orders on a without notice basis. Theis J sets out the principles and procedures at paragraphs 13 to 16 of her judgment. I cite them in full because in my view they should be considered and applied by every applicant for, and every judge dealing with, an application for without notice relief in the Family Division and this is particularly so if that relief involves the grant of a Tipstaff order. Theis J states:
"Without notice applications
13. The correct procedure applicable to without notice applications has been set out in cases many times before but seems, on many occasions, to be observed more in the breach than the observance. The manner in which Mr Rosenblatt's application was made vividly demonstrates what can happen when proper procedures are ignored.
14. Mr Justice Munby (as he then was) in both Re W (Ex Parte Orders) [2000] 2 FLR 927 and Re S (Ex Parte Orders) [2001] 1 FLR 308 set out the procedure which can be summarised as follows:
(i) Those who sought relief ex parte were under a duty to make the fullest disclosure of all the relevant circumstances known to them, including all relevant matters, whether of fact or law.
(ii) Those who obtained ex parte injunctive relief were also under an obligation to bring to the attention of the respondent, at the earliest practicable opportunity, the evidential and other persuasive materials on the basis of which the injunction had been granted.
(iii) Generally, when granting ex parte injunctive relief in the Family Division the court would require the applicant and, where appropriate the applicant's solicitors, to give the following undertakings:
(a) Where proceedings have not yet been issued, to issue and serve proceedings on the respondent, either by some specified time or as soon as practicable, in the form of the draft produced to the court or otherwise as might be appropriate;
(b) Where the application had been made otherwise than on sworn evidence, to cause to be sworn, filed and served on the respondent as soon as practicable an affidavit or affidavits substantially in the terms of the draft affidavit(s) produced to the court or, as the case might be, confirming the substance of what was said to the court by the applicant's counsel or solicitors; and
(c) Subject to (a) and (b) above to serve on the respondent as soon as practicable (i) the proceedings, (ii) a sealed copy of the order, (iii) copies of the affidavit(s) and exhibit(s) containing the evidence relied on by the applicant and
(d) notice of the return date including details of the application to be made on the return date.
(iv) A person who found himself unable to comply timeously with his undertaking should either (i) apply for an extension of time before the time for compliance has expired or (ii) pass the task...
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