Brace yourself: the Financial Remedies Working Group report in a nutshell

Just as the huge law reforms of the family justice system in April 2014 have started to bed in, more reports have been issued proposing further changes. A report from the Financial Remedies Working Group (FRWG) and an interim report from the Children and Vulnerable Witnesses Working Group (which can be viewed here, watch this space for analysis). The FRWG report is huge, with 12 annexes (ten of which can be accessed here, the other two comprise zipped files of standard orders).

What does it all mean?

Well, change and lots of it. Much of it expected (standard orders), other recommendations are unexpected (a reversal of reforms made only in April as to accelerated/shortened procedure). There’s no indication of timescales and some of the suggestions may not happen at all. My guess would be changes to arbitration and obligatory standard orders by the end of the year. Other proposed changes will take longer. And as if judges weren’t already swamped with overloaded lists and LiPs, the FRWG wants them to do lots of training. Perhaps we need more judges until the push to non-court dispute resolution is more embedded? But that’s just wishful thinking…

The report itself is over 8,000 words long. If you don’t have time to read all of that, here are the highlights:

What is the FRWG?

The FRWG is chaired by Mostyn J and Cobb J. It was set up by the President of the Family Division in 2014 following implementation of the major family law reforms in April 2014.

In his 12th View, the President said that the FRWG task is two-fold:

  • to explore ways of improving the accessibility of the system for litigants in person, and
  • to identify ways of further improving good practice in financial remedy cases

The FRWG report is divided into four parts: procedure; litigants in person; standard orders in financial remedy proceedings; and family arbitration.

Procedure

Improvements

The FRWG considers the overall structure for financial remedy applications, involving Forms E and a three stage hearing process (first appointment, financial dispute resolution appointment (FDR), and final hearing), to be well established and successful. The FRWG says it should continue but that the procedure could be improved in a number of ways that would require some amendments to FPR 2010. Key points are:

  • that there should be one unified procedure for all financial remedy applications and that there is no objective justification for distinguishing procedurally between, eg financial order applications after a divorce and an application under Schedule 1 to the Children Act 1989 (ChA 1989)
  • regarding applications under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) that, once permission has been obtained under Section 13, the application should continue under the same procedure as other financial remedy applications
  • that the need for a separate financial jurisdiction contained in Part I of the Domestic Proceedings and Magistrates Court Act 1978 should be reviewed
  • that the recent inclusion of variation applications and ChA 1989, Sch 1 applications in the accelerated/shortened procedure should be reconsidered and that that procedure should be limited to international applications under the Maintenance Regulation or the Hague Convention
  • that the procedures for international enforcement of money orders have not been updated to take into account the arrival of the single Family Court and a separate review of these procedures should be undertaken as a matter of priority
  • that the adoption of a unified procedure should enable a substantial rationalisation of the confusing array of prescribed financial remedy application forms currently available and that there should be one form of financial statement, the Form E
  • that significant time and effort is currently being pointlessly wasted in the requirement that a Form A must be issued by both parties to a marriage or civil partnership to create the power for the court to grant or dismiss an application – the FRWG proposes that once a Form A is issued by one party to a marriage or civil partnership then, save if the application is expressly stated to be limited to the seeking of a particular remedy, all possible applications by both parties should be deemed to have been made and may be granted or dismissed by the court without further application

FDRs

The FRWG’s view is that the development of the FDR hearing has been a very successful part of the 1996 reforms and that (save where the court has deliberately ordered otherwise in truly exceptional circumstances) the FDR hearing should feature in all cases as a compulsory requirement. Key points are:

  • that generally no listing for a final hearing should be given until an FDR hearing has taken place and has failed to bring about a resolution of the dispute
  • the rules should be adapted to encourage, wherever possible, and certainly in the simpler cases, the FDR to take place on the first occasion the parties attend court
  • the rules should require the parties to attend the first appointment prepared to treat it as an FDR
  • there should be an express power for the judge to impose an FDR at the first appointment
  • where further disclosure and/or valuation evidence are plainly necessary and are uncontroversial then the parties should be encouraged to attempt to agree in advance of the first appointment what is to be done to reduce costs and to save court time, though the court should of course retain overall control of case management

General

The report is wide-ranging and also comments on the following:

  • the Family Procedure Rules Committee (FPRC) is currently considering the issue of applying for re-opening first instance orders and a new draft rule is being proposed providing specifically for the court’s power to set aside a final order in specified circumstances - the outstanding policy and procedural issues are being discussed and that it is hoped that the proposed amendments will be considered by FPRC in October or November 2014
  • the FRWG has considered the procedure in relation to applications for financial relief after an overseas divorce etc (MFPA 1984, Part III) and believes that there is ambiguity in the permission to apply provisions and that consideration should be given to the level of judiciary to which such applications should be made, both at the permission stage and at the substantive stage
  • that, in principle, financial order applications should be de-linked from divorce/ dissolution proceedings
  • that in the light of HMCTS plans for the regionalisation/centralisation of the divorce/dissolution process that an applicant should still be able, in contested cases, to select a preferred court location where they wish the proceedings to take place

Litigants in person

The FRWG recognises that a substantial, and possibly increasing, portion of financial remedy litigation is conducted by litigants in person (LiPs) and that procedure and documentation must be designed to ensure that this fact is taken into account. Key points are:

  • that the current procedure for dispute resolution in financial remedy cases has been effective in reducing delay, facilitating settlement and limiting costs -  all matters of importance for the LiP
  • there are a number of guides are already available for LiPs to assist them in navigating the field of financial remedy dispute resolution – the FRWG does not intend to ‘re-invent the wheel’ by preparing yet another but considers that it would be useful if a short guide for LiPs could be sent (with the relevant court papers) once a Form A is issued
  • the FRWG welcomes the proposal that the MoJ should consider paying for all MIAMs for a period of twelve months and comments that there needs to be greater public awareness/education about the value of non-court dispute resolution
  • regarding the preparation of financial remedy paperwork, that LiPs need the facility to find relevant information about the necessary forms and paperwork for court process and that optimising useful sites on search engines should be prioritized
  • that the proposed modified Form E will be more accessible for LiPs
  • that in cases involving unrepresented parties, there is very little scope for out of court negotiations during the FDR process and judges need to be alert to promoting negotiated outcome in court while not bull-dozing or rail-roading either or both of the parties - specific judicial training in this area may be warranted (indeed the FRWG makes wide-ranging recommendations as to judicial training generally)
  • that the standard orders project has endeavoured to use language that is readily understood by LiPs
  • judges should have firmly in mind their duty to actively to manage their cases to give effect of the overriding objective, this is particularly important in cases involving LiPs but the FRWG warns judges against going ‘too far’ to indulge the LiP

Standard orders

The FRWG has been invited by the President to ‘create a comprehensive body of standard form orders’ for use in financial remedy cases. This task represents the continuation of the work already undertaken in this area by a team lead by Mostyn J. Key points are:

  • the standard orders, once adopted, will have the status of forms within FPR 2010, Pt 5 and therefore, by virtue of FPR 2010, 5.1(2), a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case
  • the FRWG states that the circumstances when a variation is acceptable are undoubtedly numerous and departure from the standard form will not prevent an order being valid and binding but the standard forms should represent the starting point, and usually the finishing point of the drafting exercise

The FRWG has sought to complete the task of creating a comprehensive body of standard form money orders, taking into account consultation responses and the practical experience of the existing drafts and recommends the formal adoption of various standard orders including those relating to financial remedies directions, final orders, enforcement, committal and Children Act 1989, Sch 1.

Arbitration

The FRWG believes that recent development of specialist family arbitration targeted to financial remedy litigation demands procedural changes designed to ensure the adoption of arbitral awards in the Family Court in a way which is as swift and uncomplicated as possible.  Key recommendations are that:

  • section 105 of the Arbitration Act 1996 be amended to allow the Family Court to be specified (currently only the High Court or the county court may be specified)
  • para 2 of the Civil Procedure Rules 1998, PD 62 should be amended to add the High Court, Family Division to the list, and
  • a Family Division equivalent of Form N8 should be devised and promulgated

Geraldine Morris is a solicitor and Head of LexisPSL Family.

Twitter: @GeraldineMorris

See here for more practical guidance on family law reform and to arrange a free trial of LexisPSL Family.

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