President of the Family Division’s Memorandum on Drafting Orders 10 November 2021
On 10 November 2021 the President of the Family Division, Sir Andrew McFarlane, issued a memorandum giving further guidance on the drafting orders in Family Proceedings, and in particular, the drafting of orders in relation to Private Law Children Cases.
Quoting from a speech he gave to the FLBA on 16 October 2021, the President observes:
“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.”
Most practitioners will readily identify with this observation!!!
However, the President also complains that practitioners have failed to adhere to his previous recommendations, set out in: Guidance: Forms of Orders in Children Cases (7 June 2019). The result, he says, is 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”.
Again, I doubt many practitioners would seek to disagree with him…
Although the President has declined to issue a Practice Direction regulating the drafting of orders at this stage, he does warn that the Family Procedure Rules Committee may need to consider doing so “if the principles of this memorandum are not observed and the non-compliance with elementary principles continues”.
The President reminds us that when drafting orders, whether by consent or following a hearing, the standard order templates must be used, adapted as appropriate to the facts of the case (as previously directed by Practice Guidance: Standard Children and other Orders (6 June 2018)).
However, the President notes that these templates say nothing about the content of recitals, other than providing some standard clauses relating to the parties’ agreements, disputed issues and domestic abuse.
The main thrust of his new Guidance therefore relates to the drafting of recitals, which the President suggests is the area causing greatest controversy… a sentiment which no doubt again resonates with us all!
The President has therefore issued a number of additional ‘rules’, which should be read in conjunction with the previous guidance, but which can be summarised as follows:
- 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.
- 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.
- 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.
- The practice of parties seeking to attribute views to the court which did not form part of the court’s decision must cease.
- The practice of a party’s representative seeking to record that party’s position before, or during, the course of, the hearing must cease.
- More latitude [in broadening the contents of recitals] 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.
- Where one or both parties has legal representation at a particular hearing, the order must be agreed, drafted and lodged before the parties leave the court building or, on remote hearings, on the day of the hearing, unless this is wholly impracticable, in which event the order must be agreed, drafted and lodged within two working days of the hearing.
- The date for the next hearing must be fixed by the parties with the court and stated in the order before the parties leave the court, unless the court otherwise orders.
Hopefully this Guidance will alleviate the significant additional burden placed on advocates when trying to agree draft orders, which seems to have been amplified by the advent of remote hearings.
A copy of the President’s Memorandum can be accessed via the following link: https://www.judiciary.uk/announcements/president-of-the-family-division-drafting-orders/
A copy of the standard Private Law Children order templates can be accessed via the following link: https://www.judiciary.uk/announcements/message-from-mr-justice-mostyn-standard-orders/