DENTON WATCH 3: DENTON IN THE FAMILY COURTS

In TRC v NS [2024] EWHC 80 (Fam) Mrs Justice Lieven considered the issues relating to relief from sanction in the context of an appeal in the Family Court.  She held that Denton principles applied.

“… the stricter and more rigorous approach to issues of non-compliance set out by the Court of Appeal in Denton is, in general, strongly in the interests of the children in Family Court proceedings.”

THE CASE

The appellant father brought an appeal against a decision by the lower court.  The time limit for appealing a case management decision is seven days.  The appeal was lodged seven days late.

WHAT TIME FOR APPEALING WAS NEEDED

1. 1. The time for making an application for permission to appeal a case management decision is set out in FPR r30(4) and is 7 days. Mr Vine accepted that the first four Grounds went to a case management decision, and therefore required that the Court gave an extension of time. However, he submitted that the fifth Ground, based on the Magistrates having made findings against the M, was a final decision and not a case management decision, and therefore no extension of time was required.

1. In my view this is a misunderstanding of what a case management decision is. The decision of the Magistrates was that it was not necessary to hold a separate fact finding hearing, and rather that the case should proceed to a final hearing. That decision is undoubtedly a case management decision. They did not purport to “find facts” as some kind of separate determination. I will consider below the degree to which in many private law cases it is possible or useful to draw a bright line division between fact finding and best interests considerations. But, in any event, the Magistrates were not purporting to “find facts”, but were merely indicating that there was quite sufficient evidential material upon which Cafcass could produce a s.7 report with recommendations.

DENTON IN THE FAMILY COURTS

The judge held that Denton principles applied in this context.  The three stage test was followed.  It was appropriate to grant the extension.

1. 1. The next issue is whether time should be extended. The Appellant’s Skeleton submitted, without authority, that Denton v TH White Ltd. [2014] EWCA Civ 906 does not apply in the Family jurisdiction, but Mr Vine accepted there is no authority for such a proposition. Plainly, Denton and its predecessor Mitchell v News Group Newspapers [2014] 1 WLR 795, were cases under the Civil Procedure Rules (“CPR”) and not the Family Procedure Rules (“FPR”). There are additional considerations under the FPR, namely the interests of the child as set out in s.1 of the Children Act 1989. Albeit, the interests of the child will not be a “paramount” consideration, because this is not a welfare based decision, those interests remain a highly relevant matter in any decision under the Children Act 1989. However, it is important to remember that the interests of the child may pull in different directions when it comes to non-compliance with the FPR. The interests of the child, both in general and in this specific case, are strongly in favour of minimising delay and dealing with cases efficiently. Therefore the stricter and more rigorous approach to issues of non-compliance set out by the Court of Appeal in Denton is, in general, strongly in the interests of the children in Family Court proceedings.

1. 1. In Denton the Court of Appeal, following Mitchell, held that the Court should carry out a three stage analysis:

“We consider that the guidance given at paras 40 and 41 of Mitchell remains substantially sound. However, in view of the way in which it has been interpreted, we propose to restate the approach that should be applied in a little more detail. A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1) . If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”. We shall consider each of these stages in turn identifying how they should be applied in practice. We recognise that hard-pressed first instance judges need a clear exposition of how the provisions of rule 3.9(1) should be given effect. We hope that what follows will avoid the need in future to resort to the earlier authorities.”

1. 1. The first stage is to identify and assess the seriousness of the failure to comply, see Denton [25]-[28], including the defaulter’s previous conduct, although this is better considered at stage three, see [27]. There is no reason, in my view, why this stage of the analysis should not be the same in Family cases.

1. 1. Here the default was serious in the sense that it was a failure to lodge the originating application, the appeal notice, within the time allowed under the Rules. However, the period in issue was quite short. A failure to lodge an appeal in time is in my view a serious or significant default because such time rules go to the fundamental discipline and finality of litigation. A party is generally entitled to assume that once the time for filing an appeal is past, then the order which has been made is final. This is rather different from a failure to lodge a particular document, such as a skeleton argument or witness statement on time where the proceedings are themselves in order and ongoing. However, the time period in issue here, 7 days, was short.

1. 1. The second stage is the reasons for the default, see [29]-[30]. The reasons advanced here are that the solicitor did not realise that this was a case management decision and therefore that the time period was 7 days; and that counsel, despite repeated “chasing”, failed to produce the attendance note. In a CPR case, such failure by lawyers would not generally be considered a good reason for failure to comply, see the White Book para 3.9.16. However, it is at this point that there is a material difference between many civil cases and Family cases. In civil cases the potential to recover damages/financial compensation from the party’s lawyers at least in part compensates for the default of the lawyers. However, given the nature of the issues, there is unlikely to be financial compensation for default in Children Act cases.

1. 1. In my view the consequence of this is that where the default is solely the fault of the litigant’s legal advisors then that is more likely to lead to relief from sanction in a Family case than in a civil case. This does not, of course, mean that default by lawyers will necessarily result in the court granting relief.

1. 1. The third stage is to consider all the circumstances of the case. In Denton, the Court of Appeal devoted considerable attention to the overriding objective and the precise terms of CPRr3.9, see [32] onwards. In the FPR the overriding objective is set out at FPRr1.1:

“1.1 The overriding objective

(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

1. 1. This must be read together with s.1(1) of the Children Act 1989:

“1 Welfare of the child.

(1) When a court determines any question with respect to—

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.”

1. 1. As I have said above, it cannot be assumed that the welfare of the child supports allowing relief from sanctions simply because one parent so asserts. There is a strong interest in Family litigation for cases to be dealt with efficiently and expeditiously, as is made clear in the overriding objective.

1. In considering the overall circumstances of the case here, I take the view that it is appropriate to extend time. The period involved is short and the only prejudice is the fact of the continuation of appeal. However, given the nature of the issues here, that should not have had much detrimental impact on the F. In practice there has been detrimental impact because the effect of the appeal has been to extend proceedings by many months. However, that is in large part because of delays in the court process. Further, the reason for the failure to lodge in time was that of the lawyers and not the M. Given all those factors together it is appropriate to extend time.