Re H and relief from sanctions

Family Law|June 16th 2015

“Relief from sanctions” is not a term that you come across very often in a family law context. In my twenty-five-odd years as a practising family lawyer I must have come across it a few times, but I don’t recall any of those occasions. The reason for this that whilst parties to family proceedings often do seek ‘relief from sanctions’, the matter has not, perhaps, been taken so seriously by the family courts as by the other civil courts. However, all that may have changed, following a Court of Appeal judgment last week. Accordingly, I thought I would write a short note on the subject.

What is “relief from sanctions”?

It is, of course, the case that court orders must be obeyed, and that failure to obey them will usually have a consequence. The same applies to the rules of the court and to practice directions.

The ‘consequence’ of failure to obey an order, a rule or a practice direction is known as a ‘sanction’. The sanction may take various forms, depending upon the nature of the failure, and may have a serious effect upon the ability of the party in breach to continue with the case. Examples of sanctions are not being allowed to rely upon evidence that was filed after a date specified by the court and, as in Re H (Children) last week, not being allowed to pursue an appeal if the notice of appeal was not filed within the prescribed time limit.

As sanctions can have such serious consequences it is obviously often the case that the party in breach will ask the court to ‘let them off’ the sanction. This process, as you have probably guessed by now, is known as ‘relief from sanctions’.

How do the courts deal with relief from sanctions?

There are rules dealing with sanctions and relief from sanctions in family proceedings, specifically rules 4.5 and 4.6 of the Family Procedure Rules 2010. Rule 4.5 basically states that sanctions have effect, unless the party in default applies for and obtains relief from the sanction. Rule 4.6 sets out that when considering an application for relief from sanctions the court should consider all the circumstances, including nine particular matters, such as whether the application for relief was made promptly, whether the failure to comply was intentional and whether there is a good explanation for the failure. The court must also consider the effect of the failure upon each party and the effect of the granting of relief upon the parties and any relevant child.

As I indicated above, there are similar provisions relating to relief from sanctions in other civil proceedings. Now, I’ve not done much civil work for a very long time, but my understanding is that, up until now, the courts have been rather stricter in allowing relief from sanctions in civil cases than they have been in family cases. In other words, the family courts have been more lenient in allowing parties to ‘get away’ with failures to comply with orders, rules or practice directions.

Will things be different after Re H?

I’m not going to go into the detail of Re H, but it certainly was a case in which the issue of relief from sanctions had very serious consequences. It concerned a father who sought to appeal against a care order and an order placing his daughter for adoption. He was 20 days late filing his notice of appeal (he should have filed it within 21 days of the orders) and was 8 months out of time requesting an oral hearing of his application for permission to appeal (by which time the child had been placed with adopters). The judge found no good reason for the delay and permission to appeal was therefore refused.

The father appealed against this decision and his appeal was allowed by the Court of Appeal, primarily because the judge had underestimated the merits of the appeal, considering that the father’s new grounds of appeal were merely arguable, when they were in truth unanswerable. Accordingly, the care and placement orders were set aside.

Despite the outcome, it has been suggested that Re H is an indication that in future the family courts will take a stricter view of relief from sanctions applications, in line with the other civil courts. This suggestion follows comments of Lord Justice McFarlane, who gave the leading judgment of the Court of Appeal. Indeed, at the beginning of his judgment he said that he was “unpersuaded that there is any ground for distinguishing family law, in this respect, from the ordinary run of cases”, as counsel had sought to argue before him. It may therefore be that things will, indeed, be different in future.

Photo by Anthony M. via Flickr

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