The Role of the Litigation Friend and the Official Solicitor
When a parent is assessed as lacking capacity and there is no one available or willing to serve as a litigation next friend, the Official Solicitor should be contacted to seek her consent to act. The Office of the Official Solicitor and Public Trustee maintains a helpful website, which includes Standard Instructions for solicitors instructed by the Official Solicitor. These instructions clarify the respective roles and expectations of the Official Solicitor. Importantly, a Litigation Friend for Civil Litigation referral form must be completed before requesting that the Official Solicitor agree to act as litigation friend.

Determining Capacity
If there is concern that a parent involved in proceedings may lack the mental capacity to conduct those proceedings, this issue should be determined as a matter of priority and as early as possible. A parent who lacks capacity is considered a “protected party.” This means they cannot conduct litigation either as a litigant in person or through a solicitor; instead, a litigation friend must be appointed to act on their behalf.

A protected party is defined as “a party, or an intended party, who lacks capacity [within the meaning of the Mental Capacity Act 2005] to conduct proceedings.” The applicable test is found in Sections 2 and 3 of the Mental Capacity Act 2005, and these sections must be read alongside the overarching principles in Section 1(2), (3), and (4) of the Act.

Understanding Lack of Capacity
For the purposes of the Act, a person is considered to lack capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves due to an impairment of or disturbance in the functioning of their mind or brain. The impairment or disturbance may be permanent or temporary. Lack of capacity cannot be established merely by reference to a person’s age, appearance, or a condition or aspect of behaviour that may lead to unjustified assumptions.
In any proceedings, the question of whether a person lacks capacity must be decided on the balance of probabilities.

Criteria for Inability to Make Decisions
Section 2 of the Act states that a person is unable to make a decision for themselves if they cannot:
• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the process of making the decision; or
• Communicate their decision (whether by talking, sign language, or any other means).

A person is not considered able to understand relevant information if they cannot understand an explanation of it in a manner appropriate to their circumstances, such as using simple language, visual aids, or other means. The ability to retain information for only a short time does not prevent a person from being considered able to make the decision. Relevant information also includes the reasonably foreseeable consequences of making a particular decision or failing to do so.

Presumption of Capacity
The starting point in every case is the statutory principle (Section 1(2) MCA 2005) that a person must be assumed to have capacity unless it is established otherwise. It follows that a person must be presumed to have the capacity to conduct proceedings in which they are involved. Declaring that a party lacks capacity has significant legal consequences and must be based on sound legal grounds and proper evidence. Such a finding should only be made with great care, as it deprives a person of the right to bring or respond to litigation without the intervention of a litigation friend. The right to litigate is a basic right protected by English law and safeguarded by the European Convention on Human Rights; it should only be restricted in limited circumstances.

Assessment and Evidence
If the court has the benefit of an expert assessment on capacity, the situation may be clear. However, if a parent declines professional assessment, it is for the court to determine the issue based on the best evidence available. It is highly unusual for the court to make a finding on capacity without any medical or psychological evidence. While the court may have some evidence, it may not be recent. The court will generally seek more current information, considering this both proportionate and necessary, as an opinion regarding capacity in one set of proceedings does not determine the issue in another. Lack of capacity should not be assumed.

In reviewing the evidence, the court must first identify an impairment or disturbance of the mind or brain (“the diagnostic test”) and then determine whether, because of this impairment or disturbance, the protected party cannot make the decisions necessary to conduct proceedings (“the functionality test”).
The court will also consider whether the parent has recently engaged with mental health services or receives assistance from adult social services. However, some parents have minimal involvement with such services and may have declined support. The court may invite the GP or other relevant professionals or agencies to assist in determining litigation capacity.

If no expert report can be obtained and the individual refuses or does not attend a medical or psychological examination, the court must consider what other evidence is available to help make its finding and should give appropriate directions.

Participation Directions
If the parent in question chooses to be directly involved in the proceedings, participation directions should be considered. These allow for adjustments throughout the proceedings to facilitate the parent’s involvement.

Stella Young
Trinity Chambers

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Accredited journalists and legal bloggers have been able to attend, observe, hear and report on family court cases if a Transparency Order is granted. They can access some documents, quote participants, provided anonymity is preserved unless there are valid reasons for refusal. This follows a successful two-year pilot, leading to a nationwide roll-out at the end of 2024.

Journalists and legal bloggers may also request to speak to, as well as quote, people involved in the proceedings. The new open reporting provisions establish a presumption in favour of granting a Transparency Order, protecting the anonymity of children and their families, unless a legitimate reason exists to refuse it.

These provisions follow the success of the Family Court Reporting Pilot, launched in January 2023 and gradually implemented nationwide over the following two years.

The President of the Family Division Sir Andrew McFarlane [who is due to retire at Easter 2026] has described this as a “watershed moment for family Justice” emphasising the importance of improving public understanding and confidence in the Family Court. In October 2025 the President gave evidence to the house of Commons Parliamentary Justice committee regarding the reform of the Family Court. The President highlighted the significant steps taken towards greater transparency in the family courts:

‘You will know that we have opened up the court, and it is now part of business as usual that journalists can come in and report what goes on, without naming anybody. Being transparent is much more than simply letting journalists in; it is an attitude of mind. I have been prepared to go on the radio and give interviews to journalists in a way that judges probably have not before, because the public have a right to understand what we are doing on their behalf. I think being transparent will continue and continue to be something that needs to be looked at. I hope you all visit your local family courts. I hope I have encouraged all the local judges to ask their individual MPs to come in. I am sure MPs visit the local schools and local hospitals, so why not the local family court? Journalists should come into the local family court, not just to report a story—which of course they can—but to see what goes on and what makes it tick. We were called the secret family justice system or the secret family court, and I do not think that can be applied to us now. We do not want to be secret. That change has been a big one in my time.’

Aims of the key changes in the past year
The President has made clear that greater openness does not compromise privacy. The intention is to explain decisions in a manner that fosters public trust, involving not only the publication of judgments but also efforts to improve the clarity and accessibility of legal language used in those judgments. If a case falls under these provisions, parties will receive a Transparency Order outlining the reporting rules.

The Transparency Order allows for reporting of the case, but prohibits others from publishing information. It sets out what can and cannot be reported, and these rules must be strictly followed. All reported information will be anonymised to prevent identification of families, and sensitive information will remain private. Reporters require the judge’s permission, and only approved reporters may attend and report on hearings.

A reporter is either a journalist with a UK Press Card or a qualified legal blogger—typically a lawyer not involved in the case, belonging to a barristers’ chambers, law firm, or an organisation such as a university or charity, and able to verify their credentials.

Reporters may access certain basic documents such as case outlines, skeleton arguments, or position statements, to assist their understanding. Any request for additional documents must be approved by the judge.
Restrictions on Reporting

Transparency Orders specify what information may or may not be reported. Generally, reporters can describe the case details, documents, and hearing events, but cannot include:

• The names of children or family members involved
• The places where children live or attend school
• The dates of birth of any children

Additional restrictions may be imposed to prevent accidental identification, such as prohibiting the naming of social workers or foster carers. The rules are designed to ensure that even in the event of media coverage, those involved remain protected. Parties are not permitted to publish information about their own cases, including on social media, and must not share or react to media coverage. Breaching these restrictions may amount to an offence.
Judicial Discretion and Decision-Making
There should be a presumption that if a journalist or media blogger is present then Transparency Orders will be made unless there is a compelling reason not to. Parties may voice objections to reporting, but cannot opt out without the judge’s agreement. In making this decision, judges consider all circumstances, balancing specific concerns with the overarching goal of increasing transparency. The judge may:

• Grant the request and prohibit all reporting
• Modify the Transparency Order to further restrict what may be reported
• Maintain the existing Transparency Order
• Photographs of the individuals reported

It is important that parties only communicate with accredited reporters and legal bloggers, verifying credentials as necessary. Participants are not obliged to speak to reporters, and must not share restricted documents.
These reforms aim to make family courts more transparent and accountable without undermining privacy, especially in sensitive cases involving children.

Publication of Anonymised Judgments
Family court judges are now expected to publish anonymised written judgments more often. This increased publication enhances the quest for accountability, further adds to a public record of decision-making, promoting consistency, and helping both practitioners and families better understand how the law is applied in real cases. For my own part I truly welcome this as there still remains mystery and misunderstandings from the general public about how decisions are made and why, which is understandable bearing in mind the legal landscape. Where a journalist or legal blogger attends a hearing, it is good practice to record their name and contact details on the case management order. A template order can be downloaded form the Courts and tribunal Judiciary website.

Recent Case Example
I recently represented a Police Force seeking to vary the terms of a Transparency Order. Care proceedings had finalised. One of the parents was due to stand trial in relation to an allegation of murder of a child.
The court considered Part 12 of The Family Procedure Rule 2010 and Practice Direction 12R, 7.1 – 7.13 when considering whether to depart from the principle of transparency. In deciding on reporting restrictions, the court weighed the family’s rights to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), the right to private and family life under Article 8 ECHR, and the rights of the press and public under Article 10 ECHR. After balancing these competing interests, the court varied the Transparency Order to allow publication of the name of the parent facing criminal trial and the deceased child therefore adjusting transparency according to the circumstances.

To date, I have encountered journalists primarily in cases allocated to the High Court rather than our local courts. This is understandable, given that the High Court handles more serious and complex matters, which tend to attract greater public interest.

Stella Young
Trinity Chambers

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a. There shall be provision by way of a pension sharing order as follows:
i. in favour of the respondent in respect of XX % of the applicant’s rights under The XXXX Plan.
ii. the costs of implementation to be shared XX in accordance with the pension sharing annex attached to this order.
b. There be the following consequential directions:
i. it being agreed between the parties that in the event that the respondent non-member spouse predeceases the applicant member spouse after this order has taken effect but before its implementation the applicant member spouse shall have the consent of the personal representatives of the respondent non-member spouse to apply to vary or to set aside the terms of this order under FPR 2010, r 9.9A or to appeal out of time against the order under the Matrimonial Causes Act 1973, s 40A or s 40B (as shall in the circumstances be appropriate).
ii. Neither party shall apply for the final divorce order until 28 days after the making of the pension sharing order, but the respondent will make such application promptly thereafter.
iii. Both parties shall do all that is necessary to implement the pension sharing order promptly, including, but not limited to, the signing and returning of any documents related to the implementation promptly from a written request by any person properly concerned with the implementation process and paying promptly from a proper written request for the share of the fee ordered by the court and required by the pension arrangement to effect implementation.
iv. The applicant shall not intentionally claim, draw down, transfer or otherwise deal with any pension benefits subject to a pension sharing order in this order until the pension share so ordered has been implemented, save in the event of prior written agreement as between the parties.

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The Practice Direction Update Document amends various Practice Directions and inserts one new Pilot Practice Direction as detailed below:

a.       Divorce, Dissolution and Separation Act (DDSA 2020) consequential amendments:

                                           i.     Practice Direction 2C – amended terminology to Practice Direction 2C which are consequential to the introduction of the new Part 7 of the Rules.

                                          ii.     Practice Direction 5A – updated amendments to Practice Direction 5A in reference to amended/new application forms as part of the work to implement the DDSA.

                                         iii.     Practice Direction 6A – amendments to Practice Direction 6A to provide further information on email service to support the amended Part 6 of the Rules.

                                         iv.     Practice Direction 7A – amendments to Practice Direction 7A to provide more information to support Part 7 of the Rules.  

                                          v.     Practice Direction 2A, 6C, 7B, 7C and 9A – updated terminology amendments.

b.         Practice Direction 36M. This Practice Direction underpins HMCTS’s system to enable family public law applications (for example for care orders) to be made and progressed online. This Update amends PD36M to mandate use by Local Authorities in the remaining family court locations (of which there are two) from 28 February 2022, as agreed by the senior judiciary. It also extends the pilot until 31 October 2022.

c.         Practice Direction 36V. This pilot Practice Direction modifies existing rules and Practice Directions to reflect the existence of the mediation voucher scheme and amends the pilot expiration date to 30 September 2022.

d.         Practice Direction 36W. This pilot Practice Direction makes provision for email notifications of forced marriage protection orders and female genital mutilation protection orders to be sent by the court to a centralised police email address once the order has been sealed. The Update will extend PD36W until 1 October 2022.

e.         Practice Direction 36Z. This Practice Direction provides the legal underpinning for the Private Law Reform Investigative Approach Pilots. This update amends a few minor errors and omissions from the pilot Practice Direction introduced in PD Update No. 1 of 2022.

f.          New Pilot Practice Direction 36ZA.  This Pilot Practice Direction underpins a pilot that has been established with the North Yorkshire police to test an improved process for notification of non-molestation orders and occupation orders with powers of arrest attached.

The post Family Procedure Rules: Practice Direction Update No. 2 of 2022 appeared first on Trinity Chambers.

I make this announcement with the authority of the President.

On 6 April 2022 the Divorce Dissolution and Separation Act 2020 comes into force. Among many other things, this makes changes to the terminology used in divorce, dissolution, nullity and separation proceedings so that, for example, a petition is replaced by an application, a decree nisi by a conditional divorce order and a decree absolute by a final divorce order.

This has necessitated changes to be made to Orders Nos 1.1, 1.2 and 2.1.

Amended versions of these orders are attached to this notice. They take effect on 6 April 2022. Also attached is a zip file of Volume 1 of the standard orders in their up-to-date form.

The revised orders assume that the case in question is either one of divorce or dissolution of a civil partnership. Thus, they refer to “the final [divorce] / [dissolution] order” and “the conditional [divorce] / [dissolution] order”. If the case is one of nullity those references should be altered to “the final nullity order” and “the conditional nullity order”. If the case is one of judicial separation the references should be altered to “the judicial separation order”. If the case is one of a separation order under section 56 Civil Partnership Act 2004 the references should be altered to “the separation order”.

All further amendments will await the full review of the standard orders, the work on which is now underway, the consultation period having concluded on 28 February 2022.

The amended orders may be downloaded from the Courts and Tribunals Judiciary website here.

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The working party under the leadership of HHJ Moradifar considering the Standard Family Orders Volume 2 (Children and Other Orders) has at the request of Mr Justice Mostyn undertaken a preliminary review of all Volume 2 orders to identify those orders which require urgent, immediate, update and amendment which cannot await the outcome of the overall review. They have identified the following:

1. Those orders where the question of jurisdiction is addressed. The amendments require a case to specify whether it is governed by pre- or post-Brexit jurisdictional rules. The orders which have been updated are:Order 7.2: Private Law Case Management Directions and Orders Precedent Library
   Order 7.3: Private Law Directions at FHDRA (No Allegations of Domestic Abuse)
   Order 7.4: Private Law Directions at FHDRA (Allegations of Domestic Abuse)
   Order 8.3: Public Law Directions and Orders at the First Case Management Hearing
2. Order 23.2 has been renamed to make it clear that it should be used for all hearings except the final hearing, and not merely for the First Hearing. It is now called “Child DoL Orders – Directions at any hearing other than the final hearing”. The substance and terminology of the order has also been amended to reflect recent relevant guidance and case law.

These revised orders, together with the zip file containing Volume 2 in its up-to-date form, are available on the Courts and Judiciary website here.

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The FRC Efficiency Statement dated 11 January 2022 requires the use of the assets and Income template ES2 at the First Appointment (para 11), the FDR (para 13) and the final hearing (para 21). In our Notice dated 11 January 2022 (as placed on https://www.judiciary.uk/announcements/notice-from-the-financial-remediescourt/ on 12 January 2022) we explained that the FLBA had drafted ES2 and we expressed gratitude to them for doing so.

The feedback that has been received since ES2 was promulgated has generally been highly positive although there have been some teething problems, and in some instances a misunderstanding as to how it should be compiled and used. The FLBA money and property subcommittee has therefore kindly produced guidance on the correct use of ES2, with an attached example. (Click Here)

We are happy to endorse this advice which seems to us to be sensible and helpful. We consider that it should be followed unless it is impractical not to do so.

MOSTYN J

HHJ HESS

1 February 2022

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The guidance supplements the general guidance on electronic bundles for all courts issued by the Senior Presiding Judge, the President of the Family Division and the Judge-in-charge of Live Services on 29 November 2021, which is available here.

Please find a link to the new E-bundle guidance here. 

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GENERAL GUIDANCE ON ELECTRONIC COURT BUNDLES

This general guidance is intended to ensure a level of consistency in the provision of electronic bundles for court hearings (but not tribunal hearings) in a format that promotes the efficient preparation for, and management of, a hearing.  It is subject to any specific guidance by particular courts or directions given for individual cases. It updates and replaces previous guidance published in May 2020.

1. E-bundles must be provided in pdf format.
2. All pages in an e-bundle must be numbered by computer-generated numbering, not by hand. The numbering should start at page 1 for the first page of the bundle (whether or not that is part of an index) and the numbering must follow sequentially to the last page of the bundle, so that the pagination matches the pdf numbering. If a hard copy of the bundle is produced, the pagination must match the e-bundle.
3. Each entry in the index must be hyperlinked to the indexed document. All significant documents and all sections in bundles must be bookmarked for ease of navigation, with a short description as the bookmark. The bookmark should contain the page number of the document.
4. All pages in an e- bundle that contain typed text must be subject to OCR (optical character recognition) if they have not been created directly as electronic text documents. This makes it easier to search for text, to highlight parts of a page, and to copy text from the bundle.
5. Any page that has been created in landscape orientation should appear in that orientation so that it can be read from left to right. No page should appear upside down.
6. The default view for all pages should be 100%.
7. If a core bundle is required, then a PDF core bundle should be produced complying with the same requirements as a paper bundle.
8. Thought should be given to the number of bundles required. It is usually better to have a single hearing e-bundle and (where appropriate) a separate single authorities e-bundle (compiled in accordance with these requirements), rather than multiple bundles (and follow any applicable court specific guidance ʹ see eg CPR PD52C Section VII).
9. The resolution of the bundle should not be greater than 300 dpi, in order to avoid slow scrolling or rendering. The bundle should be electronically optimised so as to ensure that the file size is not larger than necessary.
10. If a bundle is to be added to after it has been transmitted to the judge, then new pages should be added at the end of the bundle (and paginated accordingly). An enquiry should be made of the court as to the best way of providing the additional material. Subject to any different direction, the judge should be provided with both (a) the new section and, separately, (b) the revised bundle. This is because the judge may have already marked up the original bundle.

Delivering e-bundles

Filename: The filename for a bundle must contain the case reference and a short version of the name of the case and an indication of the content of the bundle – eg “CO12342021 Carpenters v Adventurers Hearing Bundle” or “CO12342021 Carpenters v Adventurers Authorities Bundle”.

Email: If the bundle is to be sent by email, please ensure the file size is not too large. For justice.gov e-mail addresses the maximum size of email and attachments is 36Mb in aggregate. Anything larger will be rejected. The subject line of the email should contain the case number, short form case name, hearing date and name of judge (if known).

Uploading bundles: Bundles should be sent to the court in accordance with the court’s directions. Where the bundle would otherwise be sent by email (rather than being uploaded to a portal) but is too large to be sent under cover of a single email then it may be sent to the Document Upload Centre by prior arrangement with the court ʹ for instructions see the Professional Users Guide.

Unrepresented litigants

Ordinarily the applicant is responsible for preparing the court bundles. If the applicant is unrepresented then the bundles must still if at all possible, comply with the above requirements. If it is not possible for an unrepresented litigant to comply with the requirements then a brief explanation of the reasons for this should be provided to the court as far in advance of the hearing as possible. Where possible the litigant in person should suggest a practical way of overcoming the problem. If the other party is represented then that party should consider offering to prepare the bundle.

Other internet guidance

There is guidance available freely available on the internet on how to use software to create bundles. See, for example, this YouTube video, prepared by QEB, and this video prepared by St Philips Chambers.

Lord Justice Haddon-Cave

Senior Presiding Judge

Sir Andrew Mcfarlane

President of the Family Division

Mr Justice Johnson

Judge-in-charge of Live Services

15 November 2021

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