The advisory note sets out the key changes to Private Children orders:
Paragraphs 3 and 4 of the House Rules state:
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”:
Is this the death of the recital?
The status of the recital in private law children cases appears to have been elevated in recent years and often more time and effort is spent trying to agree the wording of the recitals than on the substantive order. It causes delay, increases costs and puts additional pressure on the judiciary to resolve disagreements between the parties about the wording.
This unhelpful trend has been a thorn in the President’s side for some time, yet the President’s Memorandum on drafting orders from November 2021 seems to have been seldom adhered to by many practitioners:
“In my speech to the FLBA on 16 October 2021 I stated: “The task of drafting an order has become a prolonged process. Partly because of remote working, the process of negotiating the order extends for days, with input from instructing solicitors and lay parties. These drafts are embellished to a Byzantine degree.” I had previously referred to the problems that had arisen in the agreeing and drafting of orders in my Guidance: Forms of Orders in Children Cases (17 June 2019). There I observed that: “Many judges and practitioners are not using electronic templates or programs and are, instead, preparing lengthy narrative orders in each case by a more laborious method with the result that the preparation of orders is now taking more time rather than less.”
2. In that Guidance I proposed that the first order made in any children’s case should contain the key information but that subsequent orders should be in short form omitting lengthy narrative material and containing recitals stating only who attended and their representation; the issues determined at the hearing; any agreement or concession made during the hearing; and the issues that remain outstanding. I hoped that this would mitigate the problems.
3. In the field of public law a comparable problem has been addressed by the issue of amended orders 18 April 2021 1 which should have had the effect of substantially shortening orders made in that sphere with the result that time will have been saved and contention reduced.
4. Yet, it is clear that the problem has persisted in the field of private law, both in relation to litigation about children, and about money, and that the preparation of orders has become a highly adversarial and confrontational process leading to much unnecessary verbiage and great delay in the production of agreed drafts.
5. I have been asked to consider issuing a Practice Direction regulating professional standards in this area.
6. I do not consider that the Family Court needs such a Practice Direction, at least not at the present time. However, the Family Procedure Rule Committee will have to consider introducing such a measure if the principles in this memorandum are not observed and the non-compliance with elementary principles continues.”
For further guidance on what to include in the new schedule of recitals at the end of a draft private law order, the November 2021 Memo remains a useful starting point (key points highlighted):
9. The first and most basic rule is that where the order follows a hearing its terms (including its recitals) must reflect the result of the hearing, no more, no less.
10. The purpose of a recital is not to summarise what happened at a hearing, but rather to record those essential background matters which are not part of the body of the order.
11. In my Guidance of 17 June 2019 I said that in an ideal world the aim was to encapsulate all of the essential information about a children’s case in the most recent court order so that anyone taking up a case would only need to turn to the latest order to understand the issues, the parties, the state of the proceedings and other key information.
12. However, that process has led to delay, expense and confrontation, which has continued notwithstanding the use of short form orders. Therefore, while it remains necessary in children’s cases, both domestic and those with an international element, to record the essential background matters, it is essential that this is done as shortly and as neutrally as possible and that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the order. This is the first area of potential conflict.
13. It is not necessary in a financial remedy order to record any background matters, although the court in its discretion may permit the parties to do so. In this event it is, again, essential that this is done as shortly and as neutrally as possible.
14. The second area of potential conflict is the practice of parties seeking to attribute views to the court which did not form part of the court’s decision. This is a surprisingly prevalent practice and gives rise to much controversy. It is a practice that must cease.
15. The third area of potential conflict is the practice of a party’s representative seeking to record that party’s position before, or during, the course of, the hearing. Again, this can give rise to much conflict, but is wholly superfluous. This, too, must cease.
16. More latitude is permissible as regards consent orders but, again, restraint in relation to the content of recitals must be exercised given the cost to the parties and the time of the court that is spent approving them.
The recital therefore remains, however, the practice of it being weaponised should now be over.
Barrister specialising in Private Children Law
30th May 2023