HM Courts & Tribunals Service

5. Mr A complains about HMCTS. He specifically complains that on two occasions, in August and September 2020, HMCTS incorrectly sent disclosure orders to his son’s mother’s solicitor and as a consequence they were shared with the mother. These disclosure orders specifically said that they were not to be shared with the mother.

6. Mr A also complains that during the hearing in October 2020, the court staff’s inability to use the technology for remote hearings meant that a third of the allotted time was lost.

7. In addition, Mr A complains about the handling of his complaint as there were delays in HMCTS responding, or it failed to respond, to letters sent by his solicitor.

8. Mr A says these matters have caused him additional distress and stress at an already difficult time when he was not able to see his son. He says that by sending the disclosure orders to his son’s mother, this gave her the opportunity to collude with the people named in the disclosure orders in keeping Mr A’s son’s whereabouts from him.

9. As an outcome to his complaint, Mr A is seeking for HMCTS to acknowledge its failings and that this has caused harm to him and his son. He is also seeking a financial remedy.

10. In 2020 Mr A had an ongoing court case in relation to his son. This was following an arrangement order in June 2018 where it was ordered that his son would live with his mother, and spend time with Mr A.

11. In August 2020, his son’s mother took his son out of the UK without Mr A’s knowledge. The following week, there was a hearing at a court in north London, however, mother and son had not returned to the UK. The judge issued disclosure orders to several witnesses. HMCTS subsequently sent these to the mother’s solicitor who shared them with the mother.

12. At a further hearing in September 2020, the judge ordered the mother to return to the UK with Mr A’s son. Four further disclosure orders were made by the judge.

13. There was a further hearing two weeks later. The judge again ordered the mother to return to the UK and five further disclosure orders were made by the judge. HMCTS shared these disclosure orders with the mother’s solicitor. The judge ordered that all parties must attend a two-hour disclosure hearing in October 2020.

14. At the hearing in October, technical difficulties caused delays in the hearing starting. The judge varied the disclosure orders issued in September to allow those named to discuss them with the mother to assist in the return of Mr A’s son to the UK.

15. The case was then transferred to the high court, with a hearing held later in October 2020.

16. Mr A’s solicitor complained to HMCTS on 25 November 2020. A response was not received and so they chased this on 15 December 2020. HMCTS provided its response on 5 January 2021, however the solicitor did not receive it until 27 January 2021. The solicitor requested a review of the complaint on 24 February 2021. HMCTS issued its review stage reply on 3 June 2021. This was escalated to the appeal stage of the complaints process on 24 June 2021 and HMCTS replied on 16 August 2021.

Disclosure orders

19. Before we decide if we should investigate a complaint, we look at whether there are signs the event(s) complained about had a negative effect which the organisation has not put right. We have done this, and we have found HMCTS has already done enough to put right the impact of what went wrong.

20. Mr A complains that on two separate occasions, in August and September 2020, HMCTS shared disclosure orders with his son’s mother’s solicitor. He says these orders specifically noted that they should not be discussed with, or provided to, the mother. He says this meant that the family and friends who were the subject of the disclosure orders had the opportunity to collude with his son’s mother to keep from him the whereabouts of his son.

21. In its response dated 16 August 2021 HMCTS said: ‘I’m sorry the disclosure orders were served on [son’s mother] when they shouldn’t have been. Even so, I didn’t see a direct link between this happening and those subject to the disclosure orders, purposefully frustrating the court process. The judge had the powers to deal with this if there was evidence this took place. Orders were also made by the judge for [son’s mother] to return your son to the jurisdiction of England and Wales, which she didn’t comply with. This contributed to your case not being able to progress and additional hearings being set by the judge.’

22. In this response HMCTS also offered Mr A a financial remedy of £750 which is in recognition of its poor complaint handling (which we will consider later in this report). HMCTS also says it’s ‘…in recognition that we made an administrative mistake that caused you a lot of frustration’.

23. As HMCTS has already acknowledged that it made an error, our consideration will focus on the impact Mr A says this had on him, and what HMCTS have done to put this right.

24. We can understand why Mr A believes HMCTS’s error gave the people named in the disclosure orders the opportunity to collude with his son’s mother when making their statements to the court. We can also see that the disclosure orders say that the content must not be disclosed to anyone, and it is not to be served on his son’s mother. While this is the case, it is our view that even without HMCTS’s error, there was still an opportunity for those concerned to discuss the disclosure orders with the son’s mother. Furthermore, if there was evidence of collusion between the parties, it would be for the judge to deal with during the hearing. However, how the judge conducted the hearing is not within our remit to consider because the judiciary are not part of HMCTS.

25. Our Principles for Remedy say: ‘Where maladministration or poor service has led to injustice or hardship, public bodies should try to offer a remedy that returns the complainant to the position they would have been in otherwise. If that is not possible, the remedy should compensate them appropriately’.

26. We are in no doubt about the distress Mr A has suffered during this time. We cannot say that HMCTS’s error alone created the opportunity for the people named in the disclosure orders to collude and prevent Mr A from knowing the whereabouts of his son. We are satisfied that HMCTS has acted in line with our principles quoted above. It has acknowledged the error it made, has apologised to Mr A for this, and has provided an appropriate remedy in recognition of the impact this had on Mr A. We will explain why we think the payment offered to Mr A is appropriate later on in this report.

Hearing in October 2020

27. Mr A complains that there were technical issues at the start of the hearing in October 2020 which meant he lost a third of the allotted time available. His solicitor’s letter of complaint to HMCTS dated 25 November 2020 says: ‘There was a scheduled video hearing for the [October]. [The day before] our client was telephoned by the court to ask why he has not provided his details for log in. When he explained this has already been done by us, the court clerk was not aware of this. On [day of hearing], log in details were only provided to our client. We as counsel received no dial in details and had to be provided by our client shortly before the hearing was due to start. The hearing did not start at 10am, but was late. When indeed it did start, the wrong people had been allowed to log in. Namely a witness, his solicitor and counsel. It took time for them to be removed and the right people to be present. Other witnesses were not placed in the waiting room. Court time is scarce however of the 120 minutes allocated for the hearing, 40 minutes were wasted through ineptitude and allowing the incorrect people to attend, delay in removing them and lack of competence in operating the video system. The lack of time and inability to place other witnesses in the waiting room meant only 1 of 3 witnesses could be cross examined and the hearing was thus largely ineffective.’

28. In its response dated 18 June 2021 HMCTS said: ‘It is agreed that there were technical issues with the hearing in October, this technology is new to the courts and we have encountered some difficulties. I am sorry that this affected the hearing. As to whether witnesses should be heard or not is a matter for the judge and it would not be appropriate for me to comment on the actions of the judge in dealing with the hearing.’

29. Our Principles for Remedy say: ‘There are no automatic or routine remedies for injustice or hardship resulting from maladministration or poor service. Remedies may be financial or non-financial. An appropriate range of remedies will include: an apology, explanation and acknowledgment of responsibility’.

30. As HMCTS has acknowledged that there were technical difficulties during this hearing, as before, our consideration will focus on the impact this had on Mr A and what HMCTS have done to put this right.

31. We are in no doubt that the technical difficulties Mr A experienced during this hearing were stressful for him, particularly as he did not know the whereabouts of his son, and the aim of the hearing was to explore this.

32. We note that the hearing was taking place relatively early on during the global coronavirus pandemic. At this time, the use of technology for court hearings was still new to HMCTS and so it is understandable that issues could occur as staff familiarised themselves with new ways of working. While that is the case, as explained previously, how the hearing is conducted is a matter for the judge and we cannot comment on this as it is not within our remit. We are satisfied that HMCTS has acted in line with our principles as it has acknowledged that things went wrong and has apologised for this. We consider an apology to be appropriate and proportionate to the impact for this aspect of the complaint and we would not expect HMCTS to do more.

Complaint handling

33. Mr A complains about the handling of his complaint. He says his solicitor first complained on 25 November 2020 and there were many delays in HMCTS responding at all stages in its complaints process. He also made a complaint online himself due to the lack of response, but HMCTS closed this as his solicitor had already made the same complaint.

34. In its letter dated 16 August 2021, HMCTS said: ‘I’m sorry that our handling of your complaint has been very poor and that you’ve experienced delays in getting a reply. I’d like to offer you a goodwill (ex-gratia) payment of £750. This is to make up for the delays, additional work by you and your solicitor in chasing for replies’

35. As with the previous aspects of this complaint, HMCTS acknowledged that its complaint handling was poor. As such, we will consider the impact of this on Mr A and what HMCTS has done to put this right.

36. Mr A tells us that he has suffered additional distress and stress at a time when he was already experiencing these emotions due to not knowing the whereabouts of his son. We have no reason to doubt that this was the case. We can appreciate that this was of the utmost importance to Mr A and so the delays in dealing with his concerns would have been especially upsetting for him at this time.

37. HMCTS’s complaint handling guidance says: ‘if we have treated people unfairly or given poor service, we should apologise. In many cases thanking the customers for their feedback and saying sorry for a mistake or lack of service is a suitable way of making amends. In some circumstances, we should also consider making a goodwill offer (ex-gratia).

38. In considering the financial remedy offered by HMCTS we measured this against our own financial remedy guidance. This says: ‘In deciding what to recommend, we look to put the person back into a position where they would have been, had there not been a negative impact on them, if this is not possible, for example where the injustice is distress or unnecessary pain, we may suggest a financial payment to the complainant instead... To assist us in considering an appropriate level of financial remedy, as well as casework policy and guidance, we use our severity of injustice scale (our scale).’

39. Taking our scale into consideration, we consider that the impact caused to Mr A would fall into level 3 of our scale, which under ‘emotional’ says this is for ‘Distress, upset or worry lasting 6-12 months’. The range of financial remedy for level 3 is £500 - £950. The distress and stress Mr A is experiencing will not be removed until he is able to see his son again. However, we are satisfied that the £750 offered by HMCTS is in line with our scale and is reasonable to remedy the distress caused by the error in sharing the disclosure orders against the court’s instructions, and HMCTS’s poor handling of his complaint.

40. In summary, we are in no doubt of the distress Mr A has suffered and continues to suffer due to not being able to see his son, and by not knowing his whereabouts for so long. We cannot say that the actions of HMCTS caused this distress, but we are in no doubt that it added to it and made a very upsetting situation worse for Mr A. We are satisfied that HMCTS has acknowledged where things went wrong and has taken sufficient steps to put this right for Mr A.

1. We have carefully considered Mr A’s complaint about HM Courts & Tribunals Service (HMCTS). We have decided HMCTS has already done enough to put right the impact its mistakes had on Mr A.

2. We found that HMCTS did incorrectly send the disclosure orders to Mr A’s son’s mother’s solicitor. However, we are satisfied that HMCTS has done enough to put this right. We understand how distressing this was for Mr A particularly as this happened during an already stressful time.

3. We found that there were technical difficulties at the start of the hearing in October 2020. We are satisfied that HMCTS have apologised for this. However, we do acknowledge how frustrating this was for Mr A.

4. We found that there are indications of maladministration in HMCTS’s handling of Mr A’s complaint. However, we are satisfied that HMCTS acknowledged this and have provided an appropriate remedy. We appreciate that the delay he experienced was stressful for Mr A.