Court orders in family proceedings essentially come in two flavours: the hors-d’oeuvre of interlocutory orders and the main course of final orders. Interlocutory orders are orders made in the course of the proceedings, usually setting out procedural matters such as what each party should do, and when, for example that they should each file a statement within 14 days, etc. Final orders dispose of the proceedings by setting out the court’s decision on the subject of the application, for example with whom a child should reside in an application for a child arrangements order, or what the financial/ property settlement should be in a financial remedies application.
There are also interim orders, which temporarily deal with the main issue, or one of the main issues, usually until the final order is handed down. Examples of these are orders that a child should have contact with a parent until a forthcoming hearing, or an order for maintenance pending suit. Interim orders are technically interlocutory orders, but they are more akin to final orders as they deal with the main issue rather than procedural matters and therefore for the purpose of this post I will lump them in with final orders.
It is, of course, the case that court orders of all types are often disobeyed, but I would suggest that the orders I call interlocutory are more likely to attract disobedience, especially on the part of the lawyers involved. Whilst most family lawyers would not dream of involving themselves in the wilful breach of a final order, many seem to have a somewhat cavalier approach to interlocutory orders. The parties themselves, and those increasing numbers who are not represented, can perhaps be forgiven for not initially complying with interlocutory orders, at least until they are reminded of their duty to do so, but there can be no excuse for the lawyers.
I remember when I was practising lawyers often took a casual approach towards interlocutory orders, and there was often an attitude that it didn’t matter if you didn’t comply with the letter of the order. For example, if you were having difficulty putting together your client’s statement by a deadline set out by the court you could simply agree with the other side to extend that deadline.
However, I stopped practising six years ago and things have changed somewhat since then. In particular, in his judgment in October 2013 in Re W (A Child) the President of the Family Division Sir James Munby made the position quite clear:
“The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.”
Clearly exasperated by the attitude towards interlocutory orders, the President decided that the time had come to get tough and make it clear that family court orders must be obeyed. Other subsequent judgments made the same point.
The message is still being repeated, with Mr Justice Keehan being the latest to add his voice to the judicial exhortation, in his judgement this week in HU v SU. In that case, a private law children dispute, the family solicitors for the mother failed to file their client’s statement by the deadline set out by the court, with the result that the father incurred unnecessary costs. Mr Justice Keehan stated that:
“It must now be clear and plain to any competent family practitioners that:
- i) court orders must be obeyed;
- ii) a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and
iii) any application to extend the time for compliance must be made before the time for compliance has expired.”
He went on to say that the actions of the mother’s family solicitors were “redolent of past poor practices which should no longer feature in private or public law family proceedings” and he therefore made a wasted costs order against them.
A tough course of action to take, but clearly judicial patience with non-compliance with court orders is running out.
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