New guidance on allocation, transparency and family orders

The President of the Family Division, Sir James Munby, has issued his fourth View from the President’s Chambers which includes new guidance on standardisation of family orders, allocation and gate keeping, and transparency in family proceedings. Key areas of guidance include:

Standardisation of family orders

The President has appointed a small drafting group under the leadership of Mr Justice Mostyn to provide a comprehensive set of orders which will in due course become mandatory. Various drafts have already been put into use eg forms of freezing order and search order appended by Mostyn J to his judgment in UL v BK [2013] All ER (D) 277 (Jun). The President has indicated that he welcomes and values views on the project.

Key provisions within the draft house rules include:

• an order shall state in its heading the statute(s), or European regulation(s), or protocol under which the powers in question are exercised—it shall not state that the inherent powers of the court are being exercised

• where a party was represented by an advocate, that advocate shall be named on the face of the order

• the order shall not recite the documents which the court read, or the witnesses who were heard, save in a case where an order is made without notice, in which case the details shall be recorded in a recital

• where an order is made without notice the reason for withholding any notice must be recorded in a recital—where an order is made on short notice the reason for withholding full notice must be recorded in a recital

• the applicant for the relief in question shall be referred to in the order as the ’applicant’ and the respondent shall be referred to as the ’respondent’—the parties shall not be referred to by their titles in the main suit (ie petitioner and respondent) save in respect of orders made in the main suit

• children shall be referred to by their first forename and surname

• if a party acts by a litigation friend or a child by a children’s guardian this must be stated in the first paragraph of the order

• an order shall be consecutively numbered from number one irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order

• schedules, annexes or appendices should not be used unless their content is of very great length and would, if placed in the body of the order, disrupt its natural reading eg an elaborate and very lengthy sequence of tax and other financial indemnities given in a financial remedy case

The house style document also includes provisions in relation to grammar, capitalisation, date style and monetary values.

Allocation and gatekeeping

Following on from the issue of the revised Public Law Outline (PLO) the President has issued guidance on allocation and gatekeeping that applies to all care, supervision and other Children Act 1989, Part 4 proceedings commencing from the relevant pilot scheme start date for a court as defined in Family Procedure Rules 2010 (FPR 2010), PD 36C, paragraph 2.

The details are set out in the schedule to the guidance. The guidance will apply until the allocation procedures for the single family court come into force in 2014.

The remaining documents necessary to implement the revised PLO are available on the Ministry of Justice website and comprise the President’s guidance on:

• continuity and deployment; and

• use of prescribed documents

Transparency

The President’s view is that the law relating to transparency in family proceedings is highly technical and far too complex. He proposes to adopt an incremental approach to transparency and as a first step has issued guidance on the publication of judgments for comment and discussion. The guidance distinguishes between two classes of judgment:

• those that the court must ordinarily allow to be published; and

• those that may be published

Bundles

The President has indicated that the practice direction on bundles, FPR 2010, PD 27A, requires amendment, in part to accommodate the changes brought about by the plans for the new single family court. It needs to apply to hearings before magistrates, as it already does for the purposes of the revised PLO pilot, and requires revision to reduce the unnecessarily bloated size of far too many bundles at present.

The President proposes that in the future, when collating bundles, there will be a need to distinguish more clearly between:

  • documents that are filed
  • documents that are served but not filed
  • documents that are listed but not served or filed; and
  • documents that are included in the bundle.

The President’s initial view is that not every document that has been served or filed needs to be included in the bundle and that in the the future, bundles should contain only those documents that the court needs to read or which will actually be referred to during the hearing. Everything else should be omitted and a single lever-arch file should suffice for the majority of care cases. The President will be issuing further guidance on bundles in due course.

Geraldine Morris is a solicitor and head of the Lexis®PSL Family team

Twitter: @GeraldineMorris

 

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