New House Rules and Standard Family Orders – May 2023

Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary.

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The revision to Standard Family Orders released on 17 May 2023 are said to:
“Reflect changes in law, practice and procedure. In part, they have been amended to achieve internal consistency and clarity of phraseology. Formatting and stylistic improvements have also been made.” (Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders).

The advisory note sets out the key changes to Private Children orders:

Practical issues:

• The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)
• The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative (Vol 2 Orders 24.1-24.7)

Specific changes:

• The children orders reduce significantly the use of recitals. In general, recitals now appear at the end of children orders, giving greater prominence to the body and substance of the orders (paragraphs 3 and 4 of House Rules)
• The orders refer to “Planning Together for Children Course” instead of the “Separated Parents Information Programme” (paragraph 18 (b) Order 7.0 Vol 2)
• There is a third-party disclosure order covering disclosure requests from school/nursery; the Local Authority; GP, hospital, Health Visitor etc. and the orders refer to the correct contact details for any disclosure request to NHS England (Order 7.2 Vol 2).
• Warning notices have been updated and made consistent across the orders.
• The precedents themselves are much more detailed, for example, there are detailed provisions in respect of handovers under the “directions and conditions” (paragraph 51 Order 7.0 Vol 2).

General provisions:

• The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.
• The orders incorporate bespoke headings for the Family Court and the Family Division.
• In the children orders, there are separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.

Stylistic changes:

• No more little ‘th’ after the date; avoid archaic language; refer to the parties as applicant and respondent, rather than mother/father etc. (House Rules).

Recitals

Paragraphs 3 and 4 of the House Rules state:

• Recitals in a children order shall appear at the end of the order.
• Recitals must only record necessary information, drafted in as short and neutral a manner as possible.
• They should not record what happened in the hearing and should be limited to essential background matters which are not part of the body of the order.
• Any purported views of the court which did not form part of the court’s decision should not be recited.
• The recording of a party’s position before, during, or after the hearing as a recital should cease unless the standard order template requires such information.
• 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.

Recitals must now appear at the end of the order in a schedule. In the precedents, paragraph one of the schedule lists examples of what qualifies as a “strictly necessary recital”:

• the agreed basis of an order
• a concession
• an issue resolved
• an agreement
• mechanical information, such as how an expert will be paid, by whom and what issues the expert should look at

Is this the death of the recital?

The status of the recital in private law children cases appears to have been elevated in recent years and often more time and effort is spent trying to agree the wording of the recitals than on the substantive order.  It causes delay, increases costs and puts additional pressure on the judiciary to resolve disagreements between the parties about the wording.

This unhelpful trend has been a thorn in the President’s side for some time, yet the President’s Memorandum on drafting orders from November 2021 seems to have been seldom adhered to by many practitioners:

https://www.judiciary.uk/wp-content/uploads/2022/07/PFD-memo-on-orders-10112021.pdf

“In my speech to the FLBA on 16 October 2021 I stated: “The task of drafting an order has become a prolonged process. Partly because of remote working, the process of negotiating the order extends for days, with input from instructing solicitors and lay parties. These drafts are embellished to a Byzantine degree.”  I had previously referred to the problems that had arisen in the agreeing and drafting of orders in my Guidance: Forms of Orders in Children Cases (17 June 2019). There I observed that: “Many judges and practitioners are not using electronic templates or programs and are, instead, preparing lengthy narrative orders in each case by a more laborious method with the result that the preparation of orders is now taking more time rather than less.”

2. In that Guidance I proposed that the first order made in any children’s case should contain the key information but that subsequent orders should be in short form omitting lengthy narrative material and containing recitals stating only who attended and their representation; the issues determined at the hearing; any agreement or concession made during the hearing; and the issues that remain outstanding. I hoped that this would mitigate the problems.

3. In the field of public law a comparable problem has been addressed by the issue of amended orders 18 April 2021 1 which should have had the effect of substantially shortening orders made in that sphere with the result that time will have been saved and contention reduced.

 4. Yet, it is clear that the problem has persisted in the field of private law, both in relation to litigation about children, and about money, and that the preparation of orders has become a highly adversarial and confrontational process leading to much unnecessary verbiage and great delay in the production of agreed drafts.

5. I have been asked to consider issuing a Practice Direction regulating professional standards in this area.

6. I do not consider that the Family Court needs such a Practice Direction, at least not at the present time. However, the Family Procedure Rule Committee will have to consider introducing such a measure if the principles in this memorandum are not observed and the non-compliance with elementary principles continues.”

For further guidance on what to include in the new schedule of recitals at the end of a draft private law order, the November 2021 Memo remains a useful starting point (key points highlighted):

9. The first and most basic rule is that where the order follows a hearing its terms (including its recitals) must reflect the result of the hearing, no more, no less.

10. The purpose of a recital is not to summarise what happened at a hearing, but rather to record those essential background matters which are not part of the body of the order.

11. In my Guidance of 17 June 2019 I said that in an ideal world the aim was to encapsulate all of the essential information about a children’s case in the most recent court order so that anyone taking up a case would only need to turn to the latest order to understand the issues, the parties, the state of the proceedings and other key information.

12. However, that process has led to delay, expense and confrontation, which has continued notwithstanding the use of short form orders. Therefore, while it remains necessary in children’s cases, both domestic and those with an international element, to record the essential background matters, it is essential that this is done as shortly and as neutrally as possible and that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the order. This is the first area of potential conflict.

13. It is not necessary in a financial remedy order to record any background matters, although the court in its discretion may permit the parties to do so. In this event it is, again, essential that this is done as shortly and as neutrally as possible.

14. The second area of potential conflict is the practice of parties seeking to attribute views to the court which did not form part of the court’s decision. This is a surprisingly prevalent practice and gives rise to much controversy. It is a practice that must cease.

15. The third area of potential conflict is the practice of a party’s representative seeking to record that party’s position before, or during, the course of, the hearing. Again, this can give rise to much conflict, but is wholly superfluous. This, too, must cease.

16. More latitude is permissible as regards consent orders but, again, restraint in relation to the content of recitals must be exercised given the cost to the parties and the time of the court that is spent approving them.

The recital therefore remains, however, the practice of it being weaponised should now be over.