A misconceived application

Family Law|January 19th 2016

With no disrespect whatsoever to those who work within what I still think of as the Magistrates’ Court Service (my father was a Justices’ Clerk), I don’t recall ever previously writing about a report of a case that took place in that tier of court. However, I have just come across a report of a Northern Ireland Magistrates’ Court (also known as a ‘Family Proceedings Court’) case that caught my attention.

Jones v Ivors (for some reason categorised by Bailii under ‘English and Welsh Courts – Miscellaneous’) was a decision of the Laganside Family Proceedings Court, handed down by the Panel Chairman, District Judge John I Meehan. It concerned an application by a father for a defined contact order.

The problem with the application was that the month before making it the father had obtained a defined contact order. What is more, the father did not want to change that order.

What was going on here? Well, it seems that the father’s real complaint was that the mother was not complying with the order. However, rather than seeking to enforce the order he sought to simply return the matter to the court by making another application for defined contact.

When the court pointed out that the father’s proper redress was to issue an enforcement application his solicitor responded that the father did not want to delay matters by the longer process of an enforcement application. She did not explain how issuing an enforcement summons took longer than issuing an application under Article 8 of The Children (Northern Ireland) Order 1995, the equivalent of section 8 of the Children Act over here. In any event, as Judge Meehan pointed out in his judgment: “it is for the solicitor, not her client, to determine the proper procedure. A client does not instruct his solicitor on matters of law.” Quite.

Accordingly, as Judge Meehan stated, the court was faced with a situation in which the father “refused to consider putting a meaningful application before the Court within the terms of Article 8 of the 1995 Order and (b) refused, in the alternative, to consider issuing an Enforcement Summons.” A very odd situation. By way of explanation, the father’s solicitor also asserted that her client wished to use the Children Order route in an effort to persuade the mother to reconsider her attitude. Judge Meehan also speculated that the father’s chosen process was intended to put pressure on the mother to comply with the existing Order by the mere fact that an Application, whatever its nature, whatever its merits, had been put before a Court again. However, as he said, a party cannot issue any kind of Application as a mere vehicle for having his grievance ventilated – that is an approach which fails to respect the court’s function.

In the circumstances Judge Meehan held that the strategy adopted by the father amounted to an abuse of process that was “deeply misconceived”. Accordingly, the court concluded that the proper course was to dismiss the Application in the expectation that the father could issue an Enforcement Summons.

I confess that I am not entirely certain what was going on here. After all, if a contact order is not being complied with the clear and obvious thing to do is to issue enforcement proceedings. It is of course the case that often when dealing with an enforcement application the court will first try to redefine the contact in an attempt to make it work, rather than taking enforcement action against the person in breach of the order straightaway. However, to issue an application for an order that you already have is quite bizarre, and must surely be an abuse of the court.

The full report of Jones v Ivors can be found here.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comment(1)

  1. stitchedup says:

    Its the father’s rights that are being abused but yet again the courts are prepared to turn a blind eye to that and focus on their own anal interests. The mother hasn’t complied with the order, sort her out and using technicalities as an excuse for inaction.

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