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Care Orders vs Supervision Orders for Children Placed at Home

<!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For the first time in many years, the Court of Appeal in 2023 looked at the type of order, if any, under which a child should be placed at home in <em>JW (Child at Home under Care Order)</em> [2023] EWCA Civ 944<a href="#_ftn1" id="_ftnref1">[1]</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Case Law and Legal Principles</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Until the Court of Appeal revisited this area in <em>JW</em>, the last time that the topic had been, albeit tangentially, considered by the Court was in<em> Re DE (Child under Care Order: Injunction under Human Rights Act 1998)</em> [2014] EWFC 6; [2018] 1 FLR 1001.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Baker J held that, unless the need to remove arises as an emergency, a local authority considering removal should give notice to the parents, who may then make an application to the court to hold the situation via either an application to discharge the care order or a HRA 1998 injunction, or both. The decision to remove a child should only be made after a ‘<em>rigorous analysis of all of the realistic options</em>’ (in a similar manner required by the Supreme Court in <em>Re B </em>[2013] UKSC 33 when adoption is being considered). Baker J set out guidance on the approach to be taken where a local authority is proposing to remove a child, who is the subject of a care order, from home at paragraph 49 of the judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>[28] of <em>JW</em> sets out a helpful summary of the statutory scheme and case law:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"lower-alpha"} --> <ol style="list-style-type:lower-alpha"><!-- wp:list-item --> <li>making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>since <em>Oxfordshire </em>and <em>Re O</em>, the High Court decision in <em>Re DE</em>, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself for making a care order;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>supervision orders should be made to work, where that is the proportionate form of order to make.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>President’s Public Law Working Group Guidance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In March 2021<a href="#_ftn2" id="_ftnref2">[2]</a>, the report at paragraphs 158 – 162 dealt with the making of care orders where children are placed at home. Key parts of those paragraphs are:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of a child, an alternative means/route should be made available to provide this support and these services without the need to make a care order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Supervision Orders may be appropriate, but there are concerns of their use. They have a higher (20%) risk of breakdown and return to court for further care proceedings within 5 years.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A final care order should not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. The order should only be made whether the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the regulations.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A final care order has an intrusive effect of state intervention, not only for the parents but also for the child. It can only be justified if it is necessary and proportionate to the risk of harm to the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Appendix F of the report sets out the best practice guidance (paragraphs 34 – 37) where a care order is sought but the child is to be placed at home:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There should be exceptional reasons for the court to make such an order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It should not be used as a vehicle for the provision or support or services.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers, or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The PLWG in their report and recommendations placed emphasis on the need for proportionality when considering the necessity for a child placed at home under a final care order. This in turn caused the Court of Appeal in <em>JW</em> to find that there needs to be ‘<em>exceptional reasons’</em> to justify the making of a care order for a child who is to be placed at home as a long-term care plan.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Paragraph 37 of <em>JW</em> is key;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.'</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In April 2023 a further report was published (<em>Recommendations to achieve best practice in the child protection and family justice systems: Supervision Orders</em>)<a href="#_ftn3" id="_ftnref3">[3]</a>. The key provision within this report is contained with Appendix C. The key change is the expectation that, in every case where a supervision order may be made, the local authority will prepare a clear and detailed Supervision Support Plan<a href="#_ftn4" id="_ftnref4">[4]</a> which is tailored to the needs of the child. It also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the supervision order:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>In every case where a Supervision Order may be made, the local authority will prepare a clear and detailed Supervision Support Plan which is tailored to the needs of the child. The guidance also requires that the plan should be clear as to the provision of resources to underpin <u>each element of the plan</u>, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the Supervision Order.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following the decision in JW, it is anticipated that the number of final care orders for children placed at home will drop significantly. As practitioners, it is important to analyse the facts of each case where such a care plan is proposed, to identify whether there are ‘truly exceptional’ circumstances that justify the same. Where a case is to be concluded by way of a supervision order, it is essential that the support plan is a comprehensive document that sets out exactly what the parents can expect the local authority to do to support the family in making the placement successful, and vice versa.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf">https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf">https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf</a></p> <!-- /wp:paragraph -->

Case Law Update: Re Z (Prohibition on Cross-Examination: No QLR) [2024] EWFC 22

<!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Andrew McFarlane (President of the Family division) has handed down a very helpful and hotly anticipated judgment regarding the approach the court should adopt when it has directed a QLR be appointed for a party but no QLR has been found. Sir Andrew McFarlane took the opportunity to provide this judgment following a substantive judgment given at the conclusion of a fact-finding hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case law update is provided to assist practitioners with providing a summary of this case. However, I would greatly encourage all family law practitioners to read the judgment in full and ensure they have a copy to hand in cases where the appointment or discharging of a QLR is likely to be an issue.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Part 4B of the Matrimonial and Family Proceedings Act 1984 (MFPA) was inserted by s65 of the Domestic Abuse Act 2021, and establishes the statutory scheme for the appointment of QLR’s in family proceedings that commenced after 21 July 2022. Sir Andrew McFarlane notes the supporting Statutory Guidance, Family Procedure Rules, and provides a link to the Government website regarding the QLR scheme. His judgment provides a helpful summary of the scheme and its aims at paragraphs 4-20.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Andrew McFarlane goes on to explain the decision that he faced in the case, namely what to do when a QLR is required, but none is available. He notes that many judges and magistrates are facing this issue on a daily basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Options Before the Court Where No QLR is Available</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practitioners may recall that in a “View from the President’s Chambers” in June 2023, the President suggested that ‘if no QLR is found within 28 days, the court should list the case for directions and direct that some summary information is provided by HMCTS about the difficulties that have been encountered.’ The President mentions this guidance in his judgment at paragraph 22, and also notes that ‘Cases should not be permitted to drift whilst an open-ended search for a QLR is undertaken” [22].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The President notes that the principal options facing a court at the directions stage, following that 28 days period are likely to be (but not exhaustively):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a) A further adjournment in the hope that a QLR may be found;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>b) An adjournment to allow one or both parties to engage their own advocate;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>c) Reviewing the need for the vulnerable party to give oral evidence and be cross-examined. This will include reviewing the need for there to be a fact-finding hearing in the proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>d) Considering any other alternative means of avoiding in person cross-examination between the relevant parties;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>e) The court itself taking on the task of asking questions in place of the in person party [23].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Importantly, he notes that ‘It does not follow that, if no QLR is available, the court is automatically required to conduct the questioning itself. It is important that all possible alternative options are reviewed at that point in the proceedings’ [23].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The President continues by stating: “When considering the options, and whether the court should take on the questioning, the court will take account of PD3AB paragraph 5.3 which states that: 'a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party'. The validity of that statement is unlikely to be controversial in the eyes of judges and magistrates. Indeed, the negative aspects of questioning by the court must have been prominent in the thinking in Parliament when the QLR process was brought into law by the 2021 Act” [24].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Interestingly, whilst Practice Direction 3AB paragraph 3.5 states that ‘a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party’, this provision is not black-letter law. Therefore, the Practice Direction does not prevent the court undertaking the task of cross-examination if the court considers that, in the interests of justice, it must nevertheless do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As practitioners well know, the need for the court to deal 'justly' with cases is not confined simply to the need to act in the interests of justice when appointing a QLR; it is a requirement that pervades every step that the court may take throughout any proceedings in order to meet the 'overriding objective' of the FPR 2010.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ultimately, if the court decides to abandon further attempts to appoint a QLR, the previous direction appointing one must be discharged. The President also notes that, as a matter of good practice, the reasons for the discharge should be very shortly recorded on the face of the order and/or in a short judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Questioning by the Court</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The President at paragraphs 28 to 40 goes on to outline the approach regarding questioning by the court, noting in particular his own experience with doing so in the case before him.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“It may, at least in one sense, be reassuring to those judges, magistrates and legal advisers who regularly have to do so, to record that, in the case before me, I found the task of asking the questions to be a particularly burdensome, unnatural and tricky one. As neither party was represented, as the judge I found myself first of all asking questions to tease out further details 'in chief', as it were, from the first of the parties to give evidence before then putting to them most of the questions that the other party wished to have put. The process was then reversed when the other party entered the witness box. Over the course of a full court day, I therefore ended up asking all of the questions.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>I have used the word 'tricky' to describe the process as, when undertaking questioning, the court has to tread a narrow path between, on the one side, ensuring the witness' evidence is adequately tested by the points that the other party wishes to raise, but, on the other, ensuring that the judge does not enter the arena or be seen in any way to be promoting the case of one side or the other.”</em> [28-29].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Helpfully, the President sets out in some detail the leading authorities on the questioning of witnesses by judges, including <strong><em>Serafin v Malkiewicz</em> [2020] UKSC 23</strong> and the decision of Hayden J in <strong><em>PS v BP </em>[2018] EWHC 1987 (Fam). </strong>&nbsp;Practitioners and judges alike may find that particular section of the President’s judgment useful when preparing written and oral arguments or judgments on this issue.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The President’s Practical Points</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The President concludes at paragraphs 41 to 42 by providing his own practical factors that he would encourage judges to consider.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Finally, I would offer the following practical points for courts to consider either when appointing a QLR or when preparing to put questions itself:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>a) Whilst there is value in the QLR attending court for the ground rules hearing so that they may meet the party on whose behalf they will be asking questions, where this is impractical, and where holding the hearing remotely means that a QLR who could not otherwise act can be appointed, it should be acceptable for the QLR to attend the ground rules hearing remotely;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>b) The default position for the full hearing should be for the QLR to be in attendance at court, rather than joining remotely, as the overall effectiveness and fairness of the process is likely to be diminished if they are not in the courtroom;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c) In all cases (whether there is a QLR or not) at the ground rules hearing, or earlier, the court should direct that the prohibited party should submit a clear statement shortly stating the allegations, facts or findings that they seek to establish;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d) In all cases, the prohibited party should be required to file a written list of the questions that they wish to have asked prior to the main hearing. The list should go to the QLR, or to the court if there is no QLR, but not to the witness or other parties. This process should not prevent the prohibited party from identifying additional questions that may arise during the hearing;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>In conclusion, whilst it is to be hoped that, in time, the continued training programme and the ability to claim travel expenses will increase the availability of QLRs, there will inevitably remain some cases where there is no alternative but for the court to ask the questions itself. Unsatisfactory though that process plainly is, in such cases it will be necessary in order to deliver a just, fair and timely conclusion to proceedings. Where that is the case, the advice in this judgment is intended to assist the court in navigating the tricky path between ensuring that the opposing case is put fully, fairly and properly, but doing so without entering the arena </em>[41-42].</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As the lack of QLR’s is unlikely to be resolved in the near future, this helpful judgment is likely to be of assistance to practitioners and judges alike for some time. Ultimately, on the ground one can see that the issue of proper renumeration for the role of QLR is likely to be one of the key factors that impacts the availability of advocates willing to fulfil that role.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To read the President’s judgment in full, please see the following link: <a href="https://www.bailii.org/ew/cases/EWFC/HCJ/2024/22.html">https://www.bailii.org/ew/cases/EWFC/HCJ/2024/22.html</a></p> <!-- /wp:paragraph -->

Roundup of recently reported modest asset cases

<!-- wp:paragraph --> <p>As the end of the first week of the Financial Remedies Court (FRC) Reporting Pilot in Leeds draws to an end, what follows is an update of modest asset cases reported in the last six months:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>VT v LT [2023] EWFC 256 (B)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.bailii.org/ew/cases/EWFC/OJ/2023/256.html">https://www.bailii.org/ew/cases/EWFC/OJ/2023/256.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>DJ Hatvany sitting at the FRC in Bristol, 18 December 2023</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Core facts:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W (lived in rented accommodation); H (continued to live in the FMH- in his sole name)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>18-year relationship with three children (two of which still minor; shared care in place)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Assets:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>FMH (four-bed) with net equity of £118,000 (used by H for his business)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Marital debt £33,777 in H’s name and £3,922 in W’s name (plus legal costs)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H’s business, value uncertain but income stream for H who was sole shareholder</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Parties’ positions:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W sought a sale of the FMH and a lump sum of £80,000 to buy a shared ownership property, with H to retain all marital debt</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H sought to retain the FMH and pay W a lump sum of £45,000 (£20,000 now and balance within 18 months)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Outcome:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>H to retain the FMH (the judge accepted that this functioned as an office for H as well as a home and he could not afford to relocate)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>H to pay W a lump sum of £55,000 (£20,000 now and an additional £35,000 within 24 months), with an order for sale in default</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>H to service the marital debt in his name</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Pension Sharing Order in W’s favour</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clean break</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Useful takeaways from this case:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a short, ex-tempore judgment similar to the ones we may encounter in our day-to-day practice. DJ Hatvany speaks for the entire profession when he says at paragraph 33: “There is no easy answer. The court can only look for the fairest solution in difficult circumstances having regard to the criteria set out in section 25 of the matrimonial causes act 1973.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The parties both had responsibilities towards the children of the marriage, and equal housing needs. One of the difficulties was that W’s income was supplemented by Universal Credit and therefore any lump sum over and above £16,000 would have wiped out her entitlement to Universal Credit unless it was utilised to meet her housing needs (hence the shared ownership) within six months (or longer if a sale did not complete). For a detailed analysis of the interplay between financial remedy orders and welfare benefits, the following articles on the Financial Remedies Journal are a must-read: <a href="https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm">https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm</a> and <a href="https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm)">https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm)</a>.) &nbsp;The judge opted for a ‘creative’ solution, i.e. a deferred lump sum which enabled H to retain the FMH (at least in the interim) and to allow W to part-fund a shared ownership property. This case also highlights the difficulties that both courts and practitioners face at present with competing evidence on the parties’ borrowing capacity.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>AXA v BYB (QLR: Financial Remedies) [2023] EWFC 251 (B)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://caselaw.nationalarchives.gov.uk/ewfc/b/2023/251">https://caselaw.nationalarchives.gov.uk/ewfc/b/2023/251</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Recorder Rhys Taylor sitting at the Central Family Court, 18 December 2023</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Core facts:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W aged 36 (lived in rented accommodation); H aged 41 (continued to live in the FMH- in his sole name)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5-year relationship with a child aged 3</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Assets:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>FMH net equity £100,000</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>London flat in W’s sole name net equity of £50,000 (W found to hold 50% beneficial interest)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Proceeds of Iranian property owned by H but sold in 2022 (value unknown)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W’s debts totalling £122,674 and H’s debts totalling £101,600</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H’s pensions £86,983 and W’s pensions £28,844</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Parties’ positions:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>W sought an order for sale and 100% of net proceeds to be paid to her or a Mesher order until child attained majority. She also sought periodical payments and her jewellery to be returned.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>H sought to retain 75% of the net proceeds of the FMH, his pensions and clean break.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Outcome:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>FMH (and contents) to be transferred to W subject to mortgage</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Spousal maintenance at £700 pcm until child’s 18<sup>th</sup> birthday or completion of secondary education (global figure including CMS £1,360 pcm)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Cost order made by way of a pension sharing order, based on the limited amount of capital available against which W could enforce a costs order. This was expressed as follows in the order: “There is no order as to costs save that the court made a 100% pension sharing order over H’s Vanguard pension and has required H to pay promptly any costs of implementation in order to satisfy the costs liability.” (it later became apparent that the Vanguard pension was not illiquid, and the costs order was therefore amended to provide for 75% of the pension fund to be paid to W within 21 days).</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Useful takeaways from this case:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is the first reported case that deals with the involvement of a Qualified Legal Representative. Recorder Taylor acknowledged the difficulties that this role entails, not least the fact that a QLR is not entitled to see the bundle in advance and cannot therefore make a judgment as to whether the case is within their competence. It is an extremely well-structured judgment with hyperlinks which enable the reader to jump straight to the relevant issue. The court held that W was entitled to a significant departure from equality on the basis of her needs. He quoted the recent judgment of Moor J in <em>Butler v Butler</em> [2023] EWHC 2453 (Fam) where he had stated that in a needs case the court does not necessarily need to make an order that meets both parties’ needs. The Recorder was unimpressed with H’s evidence and his lack of disclosure. He concluded that H would have to rent somewhere and commented at paragraph 148: “if this feels like rough justice, H only has himself to blame. He has the beneficial ownership of an undisclosed sum of money somewhere”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>JN v GN [2023] EWFC 244</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.bailii.org/ew/cases/EWFC/OJ/2023/244.html">https://www.bailii.org/ew/cases/EWFC/OJ/2023/244.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>DJ Hatvany sitting at the FRC in Swindon, 21 November 2023</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Core facts:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W aged 60 (continued to live in the FMH); H aged 62 (lived with partner in social housing with secured tenancy)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>23-year marriage with one adult child</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Assets:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>FMH with equity of £224,500</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H’s inheritance £468,000 + £30,000 for a painting (dissipated)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H was also alleged to have dissipated £28,000 endowment policy and £56,000 cashed-in pension</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Modest pension provisions</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Parties’ positions:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>W sought a transfer of the FMH into her name and H to clear the outstanding mortgage, as well as a cost order</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>H agreed that W should retain the FMH but did not agree to repay the mortgage</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Outcome:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>FMH transferred to W</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>W to retain responsibility to repay the mortgage</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Departure from equality justified on the basis of H’s spending</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clean break</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>H to pay £10,000 towards W’s costs (£350 pcm due to lack of resources) due to litigation conduct</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Useful takeaways from this case:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>District Judge Hatavny took a very pragmatic approach when confronted with a limited asset base and significant non-compliance as well as financial misconduct on H’s part. He ensured that W’s housing needs were met (taking into account her health issues) whilst acknowledging that it would be unfair to require H to repay the mortgage. The approach taken by the judge on costs is also worth of note and it is hoped that it can be replicated; in the vast majority of low-asset cases, there are usually no resources left to pay for a cost order (within 14 days or at all) and this appears to sometimes discourage courts from entertaining cost applications. However, a cost order in a low-value case can go a long way and this instalment-based approach is to be given serious consideration.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Ditchfield v Ditchfield [2023] EWHC 2303 (Fam)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.bailii.org/ew/cases/EWHC/Fam/2023/2303.html">https://www.bailii.org/ew/cases/EWHC/Fam/2023/2303.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Peel J on appeal from a decision of Mr Recorder Samuels KC, 20 September 2023</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Core facts:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W aged 55, H aged 49</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15-year marriage with two minor children aged 17 and 13</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Assets:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Property 1 £110,000 net equity</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Property 2 £110,000 net equity</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Rent in bank account £41,000</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Combined business interests about £270,000 net</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H’s pension £43,000</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W’s debts £40,000</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H’s debts £85,000</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Outcome of the appeal:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The judge at first instance had operated a departure from equality, 62/38 in W’s favour and made findings against H in respect of deficient disclosure, manipulative approach to litigation and deliberate downplaying of resources;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The appeal was dismissed on all 6 grounds;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Two amendments were made to the substantive order, namely that a provision giving a specified timeframe for H to repay his sister a soft loan was deleted, and a s 28(1A) provision was added.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Useful takeaways from this case:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case highlights the difficulties that parties face when appealing findings of fact. The judge at first instance had been satisfied that, even if H’s share was less readily realisable, it was nonetheless sustainable, and he had only himself to blame for the judge’s adverse findings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Of particular interest is Peel J’s rejection of H’s criticism of the first instance court’s treatment of the available resources with reference to the parties’ housing needs. Mr Recorder Samuels KC had found that H would need time to rebuild his resources so as to buy a property and, with his earning potential, he would be able to do so. Peel J commented at para 39: “although it is generally desirable in financial remedy cases for each party to be able to own a property, with the attendant benefits of security and potential investment upside, it is not an iron rule. It will all depend on the facts. In this case it is not possible to do so at this stage.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Butler v Butler [2023] EWHC 2453 (Fam)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.bailii.org/ew/cases/EWHC/Fam/2023/2453.html">https://www.bailii.org/ew/cases/EWHC/Fam/2023/2453.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moor J on appeal from a decision of Recorder Anderson, 24 August 2023</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Core facts:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>W aged 53 (lived in rental accommodation), H aged 64 (lived in owned property)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Six-year relationship, one child aged 16</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Assets:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Property purchased by H £410,000 equity</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Land in Jamaica owned by W £16,000</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>H’s small pension in payment</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both parties had debts</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Outcome of the appeal:</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Recorder Anderson had ordered H to pay a lump sum of £58,000 to W and a clean break.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The appeal was a dismissed on the basis that the Recorder was entitled to make the order that he did; the lump sum ordered would enable W to clear her debts and there were no circumstances in which W would be able to purchase her own property.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Useful takeaways from this case:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The unusual feature of this case is that the parties’ marriage had been in name only from 2009, despite the divorce petition being dated March 2020. Therefore, the property where H was residing was non-matrimonial, having been acquired post-separation. The appeal court did not interfere with the decision of the Recorder, accepting that he was entitled to reject an outcome which would have rendered H homeless. Moor J’s comment at para 39 will no doubt feature in many position statements and skeleton arguments moving forward: “The fact that a judge rightly concludes that a case is a "needs" case does not mean that the judge must then make an order that satisfies both parties' needs. In one sense, this is obvious, because there may simply be insufficient assets to satisfy the needs of either party, let alone both.” Moor J goes on to say that “the court cannot simply apply needs as the only consideration”, and it must in fact consider all factors under s25 MCA. Moor J found that the Recorder was entitled to reject making an order that would make H homeless, particularly in light of the non-matrimonial nature of the main asset.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a side note, Moor J’s initial comments on the litigation costs, congratulating the lawyers for “the sensible and economic way in which the matter has been litigated”, make a welcome change from the stark criticism made by the higher courts on the disproportionate nature of the litigation costs incurred.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is hoped that the extension of the transparency pilot to financial remedy cases will lead to more widespread reporting of low-modest asset cases. These are certainly the cases that lead legal representatives to scratch their heads, not to mention the pressure on mounting legal costs when the parties can barely afford it.</p> <!-- /wp:paragraph -->

Parklane Plowden Podcast &#8211; Analysing 2023 in children’s family law and what it means for 2024

<!-- wp:paragraph --> <p>Listen to Parklane Plowden’s latest PLP Podcast – Analysing 2023 in children’s family law and what it means for 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Last year saw a series of case law decisions that will impact practitioners in 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden children’s family law barrister <a href="https://www.parklaneplowden.co.uk/our-barristers/maxine-best/">Maxine Best</a> is joined by fellow PLP family barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/naakesha-michl/">Naakesha Michl</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sara-anning/">Sara Anning</a>, who also sits as a recorder, to discuss 2023’s children’s family case law decision highlights. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Together, they discuss case law decisions impacting practitioners in areas such as Section 20 orders under the Children’s Act; procedural fairness; habitual residence; finding of fact hearings where adult harm is involved; and the placement of children under care orders.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The three also consider key trends and issues practitioners need to be aware of throughout 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Listen to the podcast below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Helpful resources and further reading:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Section 20</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>05.01.2023 - Re S (A Child) and Re W (A Child) (s 20 Accommodation) [2023] EWCA Civ - <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2023/1.html">https://www.bailii.org/ew/cases/EWCA/Civ/2023/1.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Williams v Hackney (as referenced on the podcast) - <a href="https://www.supremecourt.uk/cases/docs/uksc-2017-0037-judgment.pdf">https://www.supremecourt.uk/cases/docs/uksc-2017-0037-judgment.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Procedural Fairness</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>28.02.2023 - Re P (Fair Hearing) [2023] EWCA Civ 215 - https://<a href="http://www.bailii.org/ew/cases/EWCA/Civ/2023/215.html">www.bailii.org/ew/cases/EWCA/Civ/2023/215.html</a>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Habitual Residence</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12.06.2023 - Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023]&nbsp;EWCA&nbsp;Civ&nbsp;659 - <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2023/659.html&amp;query=(EWCA)+AND+(Civ)+AND+(659)">https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2023/659.html&amp;query=(EWCA)+AND+(Civ)+AND+(659)</a>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>19.10.2023 - Re London Borough of Hackney v P and Others</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 - <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2023/1213.html">https://www.bailii.org/ew/cases/EWCA/Civ/2023/1213.html</a>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Sexual harm allegations between parents</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>07.03.2023 - Re A, B and C [2023] EWCA Civ 360 - https://<a href="http://www.judiciary.uk/wp-content/uploads/2023/04/A-B-and-C-Judgment.pdf">www.judiciary.uk/wp-content/uploads/2023/04/A-B-and-C-Judgment.pdf</a> </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Care Orders at home</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>04.08.2023 - JW (Child at Home under Care Order) [2023] EWCA Civ 944 - <a href="https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf">https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf</a>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Supervision Orders</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Public Law Working Group Supervision Orders - <a href="https://www.judiciary.uk/guidance-and-resources/publication-of-the-public-law-working-group-supervision-order-report-and-webinar-today-24-april-2023/">https://www.judiciary.uk/guidance-and-resources/publication-of-the-public-law-working-group-supervision-order-report-and-webinar-today-24-april-2023/</a>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Threshold Compliance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Re A [2015] EWFC 11 - <a href="https://www.judiciary.uk/wp-content/uploads/2015/02/re-a-child-2.pdf">https://www.judiciary.uk/wp-content/uploads/2015/02/re-a-child-2.pdf</a>&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Drafting Orders</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lucy Sowden’s article on standard forms of order - <a href="https://www.parklaneplowden.co.uk/new-rules-for-standard-family-orders-public-law/">https://www.parklaneplowden.co.uk/new-rules-for-standard-family-orders-public-law/</a>&nbsp;</p> <!-- /wp:paragraph -->

Richard Harrington &#8211; My First Month of Family Law Pupillage at Parklane Plowden Chambers

<!-- wp:paragraph --> <p>The start of November marks the end of my first month as a pupil barrister. Starting pupillage was a surreal moment, it was what my years of studying and working had led to. The emotions on my first day included gratitude, excitement and of course, a lot of nerves! Thankfully, those nerves shortly passed as everyone in Chambers was welcoming and I had already met several members at events over the summer. This welcoming nature has continued, and I have felt fully supported within Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For my first six months, I am under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/farzana-tai/">Farzana Tai</a>, who specialises in children and financial remedy proceedings. Although Farzana is my supervisor, I have had the benefit of shadowing other members of the family team.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a family pupil, I am fortunate to be in court daily. The clerks have been fantastic in ensuring I observe interesting cases and have the relevant papers well in advance of hearings. In this month, I have experienced a range of hearings relating to proceedings concerning public law children, private law children and financial remedy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Throughout my first month, I have read bundles and briefs, anonymised judgments, conducted research for Farzana and other members, kept detailed attendance notes, drafted orders, and even assisted with cross-examination preparation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During my first week, I observed <a href="https://www.parklaneplowden.co.uk/our-barristers/nathaniel-garner/">Nathaniel Garner</a> appear on behalf of a local authority in the High Court on an application for a Wardship Order. In this case, the children were deemed habitually resident in England and Wales, however, were taken to a country in Africa for what was believed to be a holiday but have not returned. Due to the country not being a signatory to the Hauge Convention, a Wardship Order was needed to assist with their return. I also attended the Pupil Practice Management Course in York where I met other pupils from circuit, heard from speakers on how to manage being a self-employed barrister and obtained guidance from renowned advocates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In my second week, I was instructed to attend Kirklees Magistrates Court for a noting brief. I was instructed to keep a detailed note of a sentencing hearing for a client who had suffered significant personal injury from a road traffic incident. My note was to assist with any civil claim they may bring in the future. I also shadowed Farzana act for a parent in private law children proceedings where parental alienation had been alleged and a contact order be disregarded. This case was particularly interesting as it evidenced how a change of residency can follow where there is evidence of parental alienating behaviours.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Towards the end of the month, I shadowed <a href="https://www.parklaneplowden.co.uk/our-barristers/iain-hutchinson/">Iain Hutchinson</a> and Will Tyler KC represent a local authority at a fact-finding hearing in the High Court. This case involved a child who had become infected with gonorrhoea, and it was alleged to have been transmitted sexually by the parent or/and the step-parent. Given this was a complex and serious case, all parties were represented by Kings Counsel, and I was fortunate to witness a range of different approaches to cross-examination and oral submissions. I also attended a conference ahead of an FDR with <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/">Julia Nelson</a> who advised a client on how non-matrimonial assets are considered by the court and a conference with Farzana concerning a tribunal appeal for child maintenance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>My first month at Chambers has provided me with exposure to various areas of family law and the opportunity to learn from the very best on the North Eastern Circuit. The learning process has been insightful, and I am incredibly grateful to be in a set where its members are approachable and encouraging of questions. I look forward to completing the rest of my pupillage at Parklane Plowden Chambers.</p> <!-- /wp:paragraph -->

Parklane Plowden expand Family Team with KC

<!-- wp:paragraph --> <p>Parklane Plowden’s Family Team are delighted to welcome Julia Cheetham KC as a door tenant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Called in 1990 and Silk since 2015, Julia brings with her an exceptional reputation, dealing with highly complex matters involving children and vulnerable adults.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Julia specialises in:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Family</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Child care</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Court of Protection</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Community Care Law</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Medical</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Human Rights</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>International and Overseas Territories Law</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Julia’s particular area of specialism is in complex cases where one parent has killed another or where a child has been unlawfully killed. Julia has represented parents, children, and local authorities in such cases many of which have involved high-profile criminal cases and/or serious case reviews.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“Julia is a fantastic addition to Parklane Plowden’s already unrivalled childcare expertise on Circuit, her experience will only enhance the team’s strength in this area.” Mark Williams, Senior Practice Director.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further information on the group’s services and expertise, please contact&nbsp;<a href="https://www.parklaneplowden.co.uk/clerks/mark-williams/">Mark Williams</a>, Senior Practice Director to the Family Team on 0113 228 5043.</p> <!-- /wp:paragraph -->

New Rules for Standard Family Orders – Public Law

<!-- wp:paragraph --> <p>On the 17<sup>th</sup> May 2023 Mr Justice Peel announced a number of changes to the Standard Family Orders, along with guidance as to how such orders should be drafted. This article sets out the main changes with an emphasis on their relevance for Public Family Law practitioners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new pro forma Standard Family Orders can be found here:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The key changes are:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders include a Permission to Appeal directions order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the new required forms for cases involving committal applications.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate an updated Deprivation of Liberty order, an updated standalone Port Alert order and the correct contact details for any disclosure request to NHS England.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>House Rules</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Justice Peel sets out the ‘House Rules’ for the drafting of Family Orders, the main points of these are summarised below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Recitals</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Recitals in a children order shall appear in a schedule at the end of the order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Recitals must only record necessary information, drafted in a short and neutral manner.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Recitals should not:<ul><li>record what happened in the hearing</li></ul><ul><li>record the parties’ position</li></ul><ul><li>recite the documents which the court read (unless it was a without notice hearing)</li></ul><!-- wp:list --> <ul><!-- wp:list-item --> <li>recite the witnesses who were heard (unless it was a without notice hearing)</li> <!-- /wp:list-item --></ul> <!-- /wp:list --></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Disclosure Orders</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Disclosure orders against third parties should each be drawn as a separate order</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The main order should include, in the body of the order, what disclosure orders have been made and the date by which the disclosure should be made.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Format of order</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Orders should be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. The schedule of recitals shall recommence as paragraph 1.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The next hearing should appear at the start of the Order, with the following orders and directions in chronological order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Parties:<ul><li>The parties shall be specified at the beginning of the order.</li></ul><ul><li>Children shall be referred to by their first forename and surname.</li></ul><ul><li>Each child shall be numbered as a separate respondent.</li></ul><ul><li>The children’s guardian shall be referred to as “the guardian”.</li></ul><ul><li>If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated.</li></ul><ul><li>Advocates should be identified on the face of the order as Mr / Mrs / Miss / Ms etc. [surname] or by their first name and surname, with counsel being identified as such.</li></ul><ul><li>Contact details should be included for litigants in person and the solicitor of represented parties. Counsel’s details should not be included.</li></ul><ul><li>Language</li></ul><ul><li>Clear English should be used at all times, avoiding archaic legal language.</li></ul><ul><li>Definitions appear in the recitals. Abbreviations may be used.</li></ul><ul><li>In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.).</li></ul><ul><li>“Their” should be used in a singular sense instead of “his or hers”.</li></ul><ul><li>Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.</li></ul><ul><li>Dates must be specified using the full name of the month and year, for example 17 May 2013</li></ul><!-- wp:list --> <ul><!-- wp:list-item --> <li>Times must be stated using the 24-hour format for example - 17:00 or 12:00</li> <!-- /wp:list-item --></ul> <!-- /wp:list --></li> <!-- /wp:list-item --></ul> <!-- /wp:list -->

Drafting Family Orders – the New ‘House Rules’ and Standard Family Orders – May 2023 | Part 2 – Financial Provision and Divorce Orders

<!-- wp:paragraph --> <p>The revision to Standard Family Orders (SFO) released on 17 May 2023 are said to:<br><em>“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.” </em>(Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In Part 1, Katherine Goss set out the May 2023 key changes to Private Children orders : <a href="https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/">https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This second advisory note therefore concentrates on the May 2023 key changes to the Financial Provision and Divorce orders as a result of the May 2023 revision and also sets out in summary the new “House Rules” on how to draft orders.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As before, the SFOs do not have the status of&nbsp;<em>“forms”</em>&nbsp;under FPR Part 5. The default position is that they should be used, but parties and the court are permitted to adapt them to such extent as may be appropriate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/guidance-and-resources/advisory-notice-by-mr-justice-peel-judge-in-charge-of-the-standard-orders/">Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Click on the above link to access:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/HouseRules.May2023.docx"><strong>Download&nbsp;HouseRules.May2023.docxfile</strong></a><strong></strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip"><strong>Download&nbsp;SFO-Vol-1-150523.zipfile</strong></a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip"><strong>Download&nbsp;SFO-Vol-2-150523.zipfile</strong></a></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The Family Orders May 2023 ‘House Rules’ are then in summary :</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1) All orders made by the Family Court and the High Court (Family Division) are to be in the standard forms as contained in Vol 1 and 2 so when drafting orders, whether by consent or following a hearing you should use the standard order templates adapted as appropriate to the facts of the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2) Recitals -in a financial order these should appear at the beginning of the order BUT in a children order they are to be <strong>at the end of the order</strong>. 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3) Do Not - recite the documents read, or witnesses heard, save without notice hearings, in which case the details shall be recorded in a recital as shall the reason for the hearing being made without notice &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4) Third party disclosure orders/non-party orders need to be done as separate orders &nbsp;not contained in the main order from the proceedings, but the main order should record that separate order(s) have been made and &nbsp;should identify what the separate order was for and the date by which any information / evidence arising from that order is to be disclosed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5) Format of order: </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>b. An order shall be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. Where possible, and in any event as provided in the standard order templates, recitals in children cases should appear in a schedule to the order. The numbering of paragraphs in any schedule shall recommence as paragraph 1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>c. Subparagraphs, to two levels only, are permitted and shall be numbered (a), (b) etc, then (i), (ii) etc (with or without brackets).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>d. So far as possible, the order should contain orders and directions in a chronological order, save that the directions in respect of the next hearings should appear at the start of the order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>e. 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>6) Parties:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. The parties shall be specified at the beginning of the order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>b. Use the “applicant” and the “respondent” not in the main suit (i.e. petitioner and respondent) save in respect of orders made in the main suit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>c. Children shall be referred to by their first forename and surname.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>d. Each child shall be numbered as a separate respondent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>e. The children’s guardian shall be referred to as “the guardian.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>f. If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated in the paragraph of the order detailing the parties to the proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>7) Where a party was represented by an advocate, that advocate shall be named on the face of the order. Formality of naming should be preserved, with the advocate being identified as “Mr / Mrs / Miss / Ms etc. [surname]” or by their first name and surname. If the advocate is counsel, the order should so state.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>8) Where a standard order template requires contact details to be inserted into the paragraph detailing the parties to the proceedings, those contact details shall be of the party if a litigant in person, or of the solicitors on the court record if the party is represented. Contact details for counsel should not be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>9) Clear English (or Welsh in Wales) should be used at all times. Archaic legal language (“the party of the first part,” “hereinabove,” “heretofore” etc.) should be avoided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>10) If definitions are required, they shall appear in the recitals. Abbreviations may be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>11) In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12) Although not grammatically pure the plural pronoun “their” should be used in a singular sense instead of “his or hers.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13) An obligation to do an act as provided for in an order shall be taken to include causing the act to take place. Thus the phrase “or cause to be paid,” does not need to be included in an order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14) An obligation to do an act within a specified period shall state the actual date and time by which the act must be done.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15) Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16) Dates shall be specified and must use the full name of the month and the year in full form (e.g. 17 May 2013 and not 17<sup>th </sup>May 2013 or 17/5/13 or May 17<sup>th</sup>, 2013 or “this 17<sup>th </sup>day of May 2013”). Times must be stated using the 24-hour format (e.g. 17:00 or 12:00, not 5pm or noon.)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>17) Distances should be specified metrically up to 1,000 metres. Beyond that distance either system, imperial or metric, may be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>18) Monetary sums shall be denoted numerically, save that for sums expressed in millions the abbreviation “m” may be used. Other variants e.g. “M” or “millions” should not be used. Currencies shall be expressed by the usual symbols. Thus, for example, £, €, US$ and A$ should be used, not GBP, EUR, USD, and AUD.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Changes to the Standard Family Orders (Financial Provision)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Key Practical issues and the need for change:</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The SFO ‘long directions order’ was (in the 2020 incarnation) at 46 pages extremely long and needed wholesale revision.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Across the board the orders needed to accommodate directions for remote hearings and electronic bundles and to update the forms in the light of the Efficient Conduct Statement.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Given that the Divorce Dissolution and Separation Act 2020 is now in force the terminology used in divorce, dissolution, nullity, and separation proceedings needed updating &nbsp;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Specific changes</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The ‘long’ directions order is now down to 32 pages from 46 pages .</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a&nbsp;<strong>Qualified Legal Representative</strong>&nbsp;(Vol 2 Orders 24.1-24.7)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders contain directions supporting the Statement on the Efficient Conduct of Financial Remedy proceedings in the Financial Remedies Court Below High Court Judge level.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Financial Directions Orders &nbsp;(Order 1.1 and 1.2) orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing. This extends to there being in the <strong>Order 1.1 Long version</strong> specific reference t<a>hat the court is highly likely in the first instance to make an order for a single joint expert report and that it is only as a result of a <em>Daniels v Walker</em> application, or for some other reason, that the court permits one or both parties to obtain their own expert report</a>.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The financial orders include additional undertakings such as (i) not applying for decree absolute/final decree until 28 days after the making of a financial order (relevant for the making of a pension sharing order); (ii) removal of Land Registry notices; and (iii) obtaining a Get.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the provisions of the Divorce and Dissolution Act 2020, incorporating the new terminology for divorces – conditional order and final order in place of decree nisi and decree absolute – although retaining both options for the time being while this change takes effect.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The financial orders include draft costs orders updated to reflect changes in practice and guidance on costs.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The financial orders include draft directions and substantive orders on pensions updated to reflect changes in practice and guidance in this area.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The financial orders include a free-standing draft order to accommodate the Accelerated First Appointment procedure.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders include a Permission to Appeal directions order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Warning notices have been updated and made consistent.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would serve all practitioners well to always have the ‘House Rules’ in mind to ensure that Orders do not require amendment by the court and to update personal templates with the new SFO’s.</p> <!-- /wp:paragraph --> <!-- wp:group {"layout":{"type":"constrained"}} --> <div class="wp-block-group"><!-- wp:paragraph --> <p>Julia Nelson is the head of the family law team at Parklane Plowden Chambers. Julia's practice specialises in Financial Provision and Private Children Law. </p> <!-- /wp:paragraph --></div> <!-- /wp:group -->

New House Rules and Standard Family Orders – May 2023

<!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/guidance-and-resources/advisory-notice-by-mr-justice-peel-judge-in-charge-of-the-standard-orders/">Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary</a>. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Click on the above link to access:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><strong>House Rules (May 2023)18.69 kb</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip"><strong>Download&nbsp;SFO-Vol-1-150523.zipfile</strong></a><strong>SFO Volume 1 (zip file)2.54 mb</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip"><strong>Download&nbsp;SFO-Vol-2-150523.zipfile</strong></a><strong>SFO Volume 2 (zip file)4.64 mb</strong></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The revision to Standard Family Orders released on 17 May 2023 are said to:<br>“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).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The advisory note sets out the key changes to Private Children orders:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practical issues:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The orders accommodate directions relevant to r<strong>emote hearings </strong>and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a <strong>Qualified Legal Representative</strong> (Vol 2 Orders 24.1-24.7)</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Specific changes:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The children orders reduce significantly the use of <strong>recitals</strong>. 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)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders refer to “<strong>Planning Together for Children Course</strong>” instead of the “Separated Parents Information Programme” (paragraph 18 (b) Order 7.0 Vol 2)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>There is a <strong>third-party disclosure order</strong> 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).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>Warning notices</strong> have been updated and made consistent across the orders.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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).</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>General provisions:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate bespoke headings for the Family Court and the Family Division.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Stylistic changes:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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).</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong><u>Recitals</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Paragraphs 3 and 4 of the House Rules state:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Recitals in a children order shall appear at the end of the order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Recitals must only record necessary information, drafted in as short and neutral a manner as possible.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Any purported views of the court which did not form part of the court’s decision should not be recited.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>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”:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><strong>the agreed basis of an order</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>a concession</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>an issue resolved</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>an agreement</strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>mechanical information, such as how an expert will be paid, by whom and what issues the expert should look at</strong></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong><u>Is this the death of the recital?</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.&nbsp; It causes delay, increases costs and puts additional pressure on the judiciary to resolve disagreements between the parties about the wording.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/wp-content/uploads/2022/07/PFD-memo-on-orders-10112021.pdf">https://www.judiciary.uk/wp-content/uploads/2022/07/PFD-memo-on-orders-10112021.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“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.” &nbsp;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.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;4. <strong>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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5. I have been asked to consider issuing a Practice Direction regulating professional standards in this area.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>6<strong>. 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.”</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>9. <strong>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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>10.<strong> 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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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 <strong>that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the </strong>order. This is the first area of potential conflict.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14<strong>. 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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The recital therefore remains, however, the practice of it being weaponised should now be over.</p> <!-- /wp:paragraph -->