From the view of a local authority lawyer conducting care proceedings and generally being in charge of the court bundle, the simplest of cases will often expand beyond two full lever arch files. These will be filled with the life story of not only the child or children, but also those of their parents and possibly other family members such as grandparents or aunts and uncles.
The voluminous paperwork that a social worker has to produce to leave a paper trail of decisions and input with a family over months if not years is all in tiny compact print, due to the nationally used management software, are included. Assessments carried out by social workers and independent experts that are necessarily detailed for fear of being criticised for not knowing the case fully, not asking the right questions of parents, and therefore that the analysis and conclusions are fatally flawed, are also within the bundle. The court application form in its empty form is 17 pages and the draft case management order in its empty form is six pages long.
There was a reason for this amount of paper being in the bundles. The court needed to have the full evidence before it to have a complete picture of a family, so it can make a fair, reasoned decision about what a child has suffered in the past and what needs to happen in the child’s long-term future. Any document that is not within the bundle is used by representatives for the parents and perceived by judges as either a negligent failure or a deliberate attempt to skew the evidence in line with the local authority’s case. The amount of papers that need to be read in preparation of a case and for any hearing is not only a burden for judges, but also for the legal representatives.
Practice direction requirements and case law guidance
Practice Direction 27A of the Family Procedure Rules 2010 restricts the size of bundles to 350 single sided A4 pages (paragraph 5.1). The typed documents must have a typeface size of 12 points or more with 1 ½ or double spacing (paragraph 5.2). PD27A also stipulates that relevant documents that will actually be referred to at the hearing should be in the bundle (paragraph 4.1). There is then a list of what cannot be in the bundle, such as medical records and police disclosure. Bundles must be paginated consecutively and indexed (paragraph 4.2).
Holman J appears to have squeezed the number of pages further to allow for case management documents, for example, a case summary, statement of issues and position statements (documents filed possibly three days after the bundle is lodged with the court) to be included in the 350-page limit. This resulted in a reduced 300-page limit in Seagrove v Sullivan [2014] EWHC 4110 (Fam), when he ordered the two parties to agree or pick 150 pages each (see Legal update, High Court takes robust approach to non-compliance with Practice Direction on bundles).
Munby P approved this approach in Re L (a child) [2015] EWFC 15 for care proceedings (see Legal update, Translate only necessary documents and keep bundles to 350 pages (Family Court)). In addition to this, he strongly discouraged the use of core bundles, as Mostyn J did in J v J [2014] EWHC 3654 (Fam), as this assumes that all of the material in the full bundle will be presented at the final hearing (see Legal update, High Court to refer concerns about costs and bundles to Munby P).
The consequences for non-compliance with the bundle limit could be the following:
- The local authority preparing the bundle will be named and shamed.
- The local authority faces a costs order.
- The case could be adjourned until a bundle can be agreed or put together with the parties having an equal share of the pages to pick.
- A special delinquents’ court to question and publicly shame the contravener of PD27A will be set up.
The problem with selective bundles
Various courts have a local practice direction that require core bundles. The use of core bundles illustrates the difficulties with trying to slim down the evidence for every hearing. Contrary to Munby P’s belief, agreeing a bundle is very time consuming, as the parties will have different ideas about what is relevant and necessary material for the hearing. This is particularly the case when the parties instruct counsel, who takes a different approach from their instructing solicitors at the hearing. Negotiations often reach no agreement on documents like contact notes (not to be included, but contact is often raised as a complaint at a hearing and needs to be dealt with).
Judges will also have a different view about what is relevant and necessary reading. The absence of a particular order or letter of instruction, may give some of the missing background information to a case. The benefit of the core bundle in this instance is that the judge can see what documents are available before the hearing and have the opportunity to request the additional documents that may be relevant.
The requirement for a fresh bundle for every hearing is labour intensive. The documents need to be taken from the office bundle, copied for pagination and indexing before being sent for copying for the court and advocate. Unless every local authority has digital bundling software that allows for a new bundle to be made up with a few clicks selecting the documents required; this process is more wasteful in terms of resources than the extra copying of a bundle for the court (as suggested by Munby P). There is an equally difficult problem for those representing parents and children’s guardians, who must make up their own bundles for every hearing and will effectively have to rush this after the local authority has provided a fresh index for the new bundle.
In addition, selective bundles inevitably have to be shredded after every hearing and cannot be reused for a later hearing, because that hearing is likely to have different issues requiring different documents. With the full bundle, the pagination will not change and it will only require updating with new documents filed after the previous hearing.
In conclusion
While the complaint about the length of documents can be remedied through making directions to limit the number of pages (and therefore potentially more documents will fit into the 350 page limit), the selective bundle required by PD27A will only ever give half the picture. At a contested hearing, issues often arise that relate to other documents that may be outside the essential documents and cannot be anticipated. The lack of the full bundle does not allow anyone to be able to cross refer and check the detail.
It is understandable that judges do not want to carry several lever arch folders in their trolleys for one case. However, Munby P’s push for strict compliance with PD27A, risks hearings being unfair and contravening Article 6 of the European Convention on Human Rights. Given the seemingly lack of complaint from the lower courts over compliance, whether PD27A “has nothing to do with judicial amour-propre” (as Munby P suggests in Re L) is questionable.