Family Law

• For a summary and key points of the below report see: The Financial Remedies Working Group – Essential Update

Sir James Munby, President of the Family Division, has circulated the Report of the Financial Remedies Working Group for consultation, discussion and comment. Any observations should be sent to his Private Secretary, Alex Clark, by email to Alex.clark@judiciary.gsi.gov.uk.

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1. The Financial Remedies Working Group (“the group”) was established by the President of the Family Division in June 2014. Chaired by MIAM and Non-Court Dispute Resolution

47. Attendance at a MIAM is now required before issuing an application for financial remedy (see section 10 C&FA 2014), subject to exemptions ( rule 3 FPR 2010). It is too early to assess how these new requirements have ‘bedded in’ and what impact they have made on the number of applications.

48. In light of the dramatic reduction in referrals and take-up of mediation services following the implementation of LASPO 2012 (an unintended adverse consequence of the reform of legal aid), a Mediation Task Force has been established, supported by the MoJ. It has recently (June 2014) published a helpful report to which we have had regard: ( http://www.justice.gov.uk/downloads/family-mediation-task-force-report.pdf). We hope that the recommendations of the Task Force will be swiftly implemented. Specifically, we welcome the proposal that the MoJ should consider paying for all MIAMs for a period of twelve months. Specifically in the field of financial remedy cases, we support the recommendation that the negligible £200 settlement fee for obtaining a consent order once an agreement has been reached in mediation should be increased to £300 for financial and all issues cases.

49. There needs to be greater public awareness/education about the value of non-court dispute resolution. The work of the family mediation council should be better broadcast, and its site www.familymediationcouncil.org.uk more widely advertised. The web resource – find your local mediator – on that site is extremely useful.

Preparation of financial remedy paperwork

50. LiPs need the facility to find the relevant information about the necessary forms and paperwork for court process. Optimising useful sites on search engines should be prioritised. There should be wider signposting of the resources for forms on the web. The HMCTS website http://hmctsformfinder.justice.gov.uk/HMCTS/FormFinder.do. does not in our view readily yield the relevant forms for a financial remedy case. The LiP will struggle to find what he/she is looking for.

51. Supporting documents and Guides should be available in a number of languages. We note that Forced Marriage Protection advice is available in Urdu, Punjabi, Bengali and other languages; financial remedy guides should similarly be translated.

52. The www.nofamilylawyer.co.uk site has useful documents, including draft documents for a FDA.

Form E

53. We consider that the proposed modified Form E will be more accessible for LiPs, and we commend it.

54. As indicated above, there is useful guide to completion of the Form E in the Advicenow guide.


FDR

55. The FDR is a key stage in the financial remedy journey. The conduct of the FDR between two LiPs requires particular judicial skills, as the Judge endeavours to strike the right balance in cases involving unrepresented parties between assessing (sometimes even formulating) the relevant arguments and giving relevant advice, while being the neutral arbiter, as well as facilitator of settlement; this is particularly difficult if, for instance, the financially stronger party seeks to influence the territory for negotiation with a ridiculously low offer.

56. In cases involving unrepresented parties, there is very little scope for out of court negotiations during the FDR process (i.e. once indications have been given), and Judges need to be alert to promoting negotiated outcome in court while not bull-dozing or rail-roading either or both of the parties.

57. Specific judicial training in this area may be warranted, and indeed welcomed by the full-time and part-time judiciary.

Orders

58. The Family Orders Project has standardised the relevant orders, and has (wherever possible) endeavoured to use language which is readily understood by LiPs.

59. Standard orders may of course be varied by the court or a party if the variation is required by the circumstances of a particular case; so when drafting orders other than those using the standard templates, or other associated documents, we encourage Judges (and practitioners where appearing on one side) to use language which is readily understood by LiPs, therefore:

a. LiPs are more likely to understand what is being asked of them better if their NAMES are used, rather than the terms Applicant / Respondent’;

b. The traditional expression “File and Serve” may be readily understood by lawyers but is perhaps less well understood by LiPs. The standard orders have been adapted to use the expression “send to the court and serve on the other party”. In some instances it may be appropriate to include in an order a case-specific simple explanation of what the word “serve” means. Typically this may simply mean sending a document in the post, but there are of course instances when this is not sufficient.

c. Penal notice. In a financial remedy case the applicant is entitled to the endorsement as of right, (a point which should be wider understood by judges and court staff). We consider that it is probably wise for each order to be endorsed with a penal notice at the time it is made (often orders are seen to say “a penal notice is attached to this paragraph” which is not enough). The full content of the penal notice should be prominently displayed on the front of the copy of the order and/or spelt out in the body of each paragraph to which it applies. All the financial orders in the suggested standard orders wardrobes follow this suggestion.

• d.“Schedule of deficiencies” should perhaps be described in the definition section as “a list of all questions that have not been properly answered and an explanation of what is missing”

• e."Chattels" should perhaps be described in the definition section as “property and belongings other than land or houses”

• f.“Points of dispute” should perhaps be described in the definition section as "things disagreed about and which the court needs to decide"

• g.Further, it may be preferable to avoid “providing only that” (using instead "as long as") and “adjourn” (using instead "postpone").

60. Judges invariably are required to play a greater role in the drafting of final and other orders where the parties are unrepresented. Designated Family Judges and Court Managers need to be particularly aware of this, so that sufficient time is allowed in the court diaries for the Judge to attend to this at the end of FDR or final hearing.

Case management and LiPs

61. Inevitably judges will be required, in order to do justice between the parties, to offer a degree of latitude to the LiP whose preparation and presentation of case does not conform to the rules. That said, in financial remedy cases as in all others, the judge has a duty to manage cases ‘justly’ and ‘proportionately’, and any indulgence offered should never be allowed to compromise due process. Judges should have firmly in mind their duty actively to manage their cases (rule 1(4) of the FPR 2010) and use their wide case management powers (rule 4 ibid.) to give effect of the overriding objective; this is perhaps particularly important in cases involving LiPs.

62. We take this opportunity to warn judges against going ‘too far’ to indulge the LiP. As Kay LJ observed (Munby LJ & Lewison LJ concurring) in Tinkler & Anor v Elliott [2012] EWCA Civ 1289 (civil proceedings where LiP suffered mental ill health and had made a very late set aside application):

“An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence...The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. [The judge] regarded this to be "a special case on its facts" but it could only be considered such if one goes too far in making allowances for a litigant in person.”

63. The point above is also well-illustrated by the family case of Re M (Placement Order) [2010] EWCA Civ 1257 [2011] 1 FLR 1765 in which the Court of Appeal upheld the decision of a circuit judge to strike out an appeal, or purported appeal, against the making of a placement order for want of compliance both with the relevant rules and with court directions: per Wilson LJ: “rules require compliance” [18] even where the proposed appellant was a LiP.

64. Moreover, and as the Court of Appeal (Re W [2013] EWCA Civ 1177) and Family Division (A Local Authority v. DG [2014] EWHC 63 (Fam) and LB Bexley v. V [2014] EWHC 2187 (Fam)) have recently emphasised, orders are orders: “Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders”. Compliance with court orders is to be expected of all parties, including LiPs.

Judicial Training

65. As the President indicated in his 12th ‘View’, in this field of family law “[w]e will need to make our judicial processes more inquisitorial”. In that respect it is noted that the Course Directors responsible for Family courses at the