The President of the Family Division, Sir Andrew McFarlane, has issued a memorandum setting out the approach for drafting orders in the Family Court, in order to mitigate a number of problems. Please click here for more information.
Although there is no Practice Direction in force dealing with the drafting of orders specifically, the President has warned that this may need to be considered if the principles in the memorandum are not observed. A summary of these are set out below:
Summary of principles
- Use the standard order templates, adapted as appropriate to the facts of the case.
- 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.
- 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.
- The practice of parties seeking to attribute views to the court which did not form part of the court’s decision is surprisingly prevalent and must cease.
- The practice of a party’s representative seeking to record that party’s position before, or during, the course of the hearing can give rise to much conflict and is wholly superfluous. This must cease.
- 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.
- 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.