One of the banes of a family lawyer’s life is Practice Direction 27A (PD27A) of the Family Procedure Rules 2010. This part of the court rules sets out in enormous detail a family lawyer’s obligation to provide the court with a bundle for every hearing takes place in a family case. The bundle is usually a lever arch file, containing all of the relevant documentation which the Court may need to read or have access to during a hearing.
Not so very long ago, the obligation to provide a court bundle for a hearing only applied to hearings which were expected to last more than an hour. The vast majority of family hearings last an hour or less, so the hassle involved in compiling a court bundle was relatively infrequent. However, since the introduction of PD27A, the court requires a court bundle for every single hearing, whether it is due to last five minutes or five months.
Some judges are more relaxed about the court bundle than others, not least because it is not unusual for the bundle to barely be glanced at in advance of any hearing, especially in straightforward ones. Other judges are much more strict; a few years ago, the senior family judge for England and Wales, the President of the Family Division, Sir James Munby, caused a certain amount of consternation amongst family lawyers by handing down a judgment in which he slated the lawyers in a case for daring to provide the court with a bundle contained inside a foolscap lever arch file, rather than an A4 lever arch file. The main objection to the use of the slightly larger ring binders was that they do not fit on the shelves and trolleys used by the court.
“PD27A para 5.1 requires the bundle to be contained in an “A4 size ring binder or lever arch file” (emphasis added). Too often this requirement is ignored and the bundle is contained in a foolscap binder or lever arch file. This will not do. This requirement must be complied with. This is not some mindless pedantry. There are reasons for the stipulation, each deriving from the fact that an A4 lever arch file, although it contains as many sheets of paper, is not as tall as a foolscap lever arch file. First, a standard size bankers box can accommodate 5 A4 lever arch files, but only 4 foolscap lever arch files. Second, many judges and courts have trolleys or shelves arranged to accommodate A4 lever arch files, the purpose being to maximise the number of shelves (and thus the number of files) that can be fitted in any given space.”
It may surprise people to learn that such apparently trivial issues are worthy of judicial diktat, but I confess that the judgment did have me scurrying to my stationery cupboard to make sure that I was not using foolscap ring binders. I was pleased to discover that all of my ring binders were A4. Never let it be said that I am not at the cutting edge of family law.
As a result of PD27A, huge amounts of paperwork now fly back and forth around the family justice system. In the good old days, it was possible to stroll down the road with the bundle, and hand deliver the bundle by going up to the counter in the Court Office. However, cuts over the last few years have meant that courts no longer offer a counter service to walk-in customers. Arranging a counter appointment is difficult and only available for the issuing of emergency applications. Instead, the court service says that paperwork can be delivered to the court by posting them through the court letterbox. Unfortunately, court letterboxes are usually about 1 inch wide, whereas a lever arch file is about 4 inches wide. As a result, the simplest way to deliver a court bundle to the court is to send it in the post or arrange for a courier to deliver it.
The utter inefficiency of this system came home to me a couple of years ago when I was arranging to deliver a bundle to the court for hearing where my client was applying for a Child Arrangements Order so that his former girlfriend would be obliged to let him see their children. A one-day trial was listed to take place that the Family Court at Colchester Magistrates. However, there is no court office at Colchester Magistrates Court and all paperwork has to be sent to the Family Court at Chelmsford. Furthermore, as the hearing was before magistrates, a single court bundle would not suffice. I had to send four copies of the bundle to the court, one for each magistrate and one for the court Legal Adviser (as magistrate’s clerks are now known). I therefore filled a box with four lever arch files, containing no more than the maximum number of pages permitted in accordance with PD27A, and drove into Colchester to my local branch of Mailboxes Etc. As I climbed out of my car on the top floor of the nearby multi-storey car park, I glanced to my left and was able to see Colchester’s handsome new magistrates court building where the trial would be taking place. It was bizarre that I was going to have to carry my box of files down to Mailboxes Etc so that they could courier the files to Chelmsford, and so that the court staff in Chelmsford could then courier them back to Colchester Magistrates Court.
I am not particularly keen on the use of magistrates in family hearings. There are arguments in favour of magistrates, such as involvement of the local community in the administration of justice. However, I think that courts are no place for amateurs. Family magistrates are not legally qualified and have minimal training. They are guided by the Legal Advisers who are legally qualified, but frankly I often find that some of their decisions are decidedly odd. Along with many other solicitors, I much prefer my cases to be decided by proper judge.
Until a few years ago, a strange dual system of family justice existed in England and Wales. Family cases could take place in either the County Court (before a district judge or judge) or the Family Proceedings Court (before magistrates). In theory, the County Courts dealt with divorces, and any resulting litigation about the divorcing couples’ finances or children, whereas the Family Proceedings Courts dealt with disputes between unmarried parents about their children (as well as public law cases where children were the subject of care proceedings). However, it was possible to issue an application in the County Court for a Residence Order or a Contact Order (as they were then known) affecting a child of an unmarried relationship. As a result, solicitors wherever possible, would issue their client’s applications in the County Court and avoid the need to deal with magistrates.
However, the government likes family magistrates because they are cheap. Therefore, when the single Family Court was introduced a few years ago, merging the Family Proceedings Court with the County Court’s family jurisdiction, hearings before magistrates became the norm in almost every case about children. As far as I was concerned, this was a massive step backwards. While it made total sense to have a single court dealing with family cases rather than two separate court systems, in an ideal world, family magistrates would have been abolished at the same time as the Family Proceedings Court and all family cases would have been dealt with by a proper judge.
I am not alone in that view. I recall a conversation with a now retired district judge where I had made a diplomatic comment about magistrates. He was scornful of such diplomacy and said “Imagine you have to have an operation and you went to hospital. Imagine a nurse coming into your ward beforehand and telling you that the operation was not going to be conducted by a surgeon, it was instead going to be undertaken by a trio of well-meaning amateurs. How would you feel about that?”
So, as far as I am concerned, there are lots of good reasons why family cases should not be dealt with by magistrates, but the one the bugs me the most is that they require four times as much paperwork as a district judge, all of which has to be shipped around by couriers at vast expense, in vans belching diesel up and down the A12.
There is a simple solution to the wastefulness, pollution and logistical hassle caused by PD27A. It should be possible in this day and age for all relevant documents to be filed at court electronically. Solicitors and barristers could come to court clutching nothing more than a laptop or a tablet. The court (whether it be comprised of magistrates or a judge) would also have nothing more than a laptop or a tablet. Everyone at court would have access to an electronic bundle accessible through their devices, including the parties to the case. It is astonishing that in the year 2018, the Family Court has lagged so far behind the rest of society in introducing new technology.
Digital justice appears to be on the cards; HM Courts and Tribunal Service is now slowly introducing the ability to file divorce proceedings online. However, until we have a 21st-century version of PD27A, magistrates are environmentally unfriendly. Lawyers are often accused of producing a lot of hot air. PD27A literally ensures that we must do so.
15 April 2018