Names of counsel and instructing solicitors withheld for reasons of anonymity.
The applicant father brought proceedings under the Child Abduction and Custody Act 1985 seeking a without notice location order based on the asserted belief that mother and child were in the jurisdiction following the mother’s removal of the child to Pakistan from the United States. The original order was made on 31 October 2011, and thereafter was continued on an open-ended basis by different judges in the Family Division but was not served on the mother whose whereabouts remained unknown to the Tipstaff until she visited the United Kingdom, without the child, in June 2012, not having been in the jurisdiction in 2011. At the present hearing counsel for the father sought to withdraw the application or have it dismissed and the mother applied for a wasted costs order against the father’s solicitors, relying on alleged acts of “negligence” on their part in the sense that they had failed to act with the competence reasonably to be expected of ordinary members of the profession.
Wasted costs order against the father’s solicitors in the sum of £18,000 including VAT.
The judge said, at paras 7–8, 11, 12, 14, that tipstaff and location orders were powerful weapons in the search for children and the determination by the courts in England and Wales of issues relating to their future. They enabled public authorities to interfere in the private lives of adults and children and carried serious penalties. The potentially serious impact of such orders meant that those who applied for them and those who granted them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis: see Young v Young [2012] Fam 198 and the recent guidance of Theis J in KY v DD (Injunctions) [2012] 2 FLR 200, paras 13–16. However, failure to comply with the principles and procedures relating to without notice applications was endemic in the Family Division and had occurred in the present case. Such regular and flagrant failure by many practitioners and judges was contrary to the public interest. The practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence was to be deprecated. At paras 105 and 109, the judge concluded that the serious and inexcusable failures to comply with principles and procedures governing the making of a without notice application amounted to negligence in the Ridalgh v Horsefield [1994] Ch 205 sense justifying a wasted costs order.