Introduction
Sir Andrew McFarlane, the President of the Family Division issued a memorandum setting out the correct approach that should be taken when draft orders in the Family Court. This is available on the Judiciary.uk website.
Standard Orders
When drafting orders, whether by consent or following a hearing, the standard order templates should be used, adapted as appropriate to the facts of the case: Practice Guidance: Standard Financial and Enforcement Orders (30 November 2017) and Practice Guidance : Standard Children and other Orders (6 June 2018)2.
These templates only provide standard clauses for agreements and orders disposing of the case together with rules about formatting. They say nothing about the content of the recitals. The President confirmed this is the area where great controversy seems to arise.
Recitals
The President confirms that 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.
Firstly, while it remains necessary in children’s cases, 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.
Secondly, the practice of parties seeking to attribute views to the court which did not form part of the court’s decision is a practice that must cease.
Thirdly, a party’s representative seeking to record that party’s position. This is wholly superfluous and must cease.
When the Order must be drafted and lodged
The President makes clear that where one or both parties have legal representation at a hearing, the order must be agreed, drafted, and lodged before the parties leave the court building. Alternatively on remote hearings, this occurs on the day of the hearing, unless this is wholly impracticable. If wholly impracticable, 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.
Conclusion
If you need assistance in respect of children and domestic violence court proceedings, we want to assist you. We will always aim to achieve the most satisfactory outcome that is possible. We will continue to advise you throughout the court proceedings.
The Children and Domestic Abuse team here at Brethertons LLP are here to answer any questions that you may have.
Please do not hesitate to contact us on 01788 579579 or 01295 270999 or at family-children@brethertons.co.uk
Alternatively, please contact one of the partners in our Children and Domestic Violence team directly. Kim Lehal on 01788557670 or Simon Craddock on 01295661430.