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Evidence, Practice and Procedure: The view from the President’s window; run up to the family court

Date:14 FEB 2014
Solicitor Advocate

David Burrows - Practice of Family Law: Evidence and Procedure

David Burrows

Family proceedings: 'the beginning of the future'

The most recent ‘View from the President's chambers' [10] is entitled ‘The process of reform: the beginning of the future'. By Sir James Munby, President of the Family Division, it provides - as have its predecessors - a review of how he regards the progress of the family court project. We learn what is happening in First Avenue House (home of the Principal Registry of the Family Division) and that Sir James's provincial progress still has five care centres to go.

More than half of the text is taken up with children law matters; whilst the majority of family proceedings - has a third of the ‘View' devoted to it. He starts this last part by referring to his transparency Guidance. He speaks of the next step being ‘the disclosure to the media of certain categories of document, subject, of course, to appropriate restrictions and safeguards'.

On disclosure generally the Family Procedure Rules Committee has said that in the case of disclosure the Committee take the view that it is the common law which applies, save where the three existing Part 21 rules apply (and - it must be said - they merely echo CPR 1998 Part 31).

The modern common law in the area of release of court documents is summarised in CPR 1998 r 31.14; and clarified in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates' Court[2012] EWCA Civ 420, [2013] QB 618. These do not sit easily with some versions of the position in proceedings position following Clibbery v Allan [2002] EWCA Civ 45, [2002] 1 FLR 565 and as explained by Coleridge J in Revenue and Customs v Charman & Anor [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119).

A further draft bundles practice direction will be considered by FPRC in early March; but, says Sir James, ‘size of bundle issues' are unlikely to be resolved till July 2014.

Standard draft orders

‘The family orders project continues under the leadership of Mostyn J'. A second batch is promised soon says the President:

'May I take this opportunity of making clear that this important work has not been put on hold indefinitely. There has merely been a necessary slowing of the tempo, whilst even more pressing matters take priority. Implementation may be staged and in any event will not take place until after April 2014.'

Sir James touches on his arbitral award ‘decision in S v S [2014] EWHC 7 (Fam)' which, he says, dealt ‘with how the court should approach applications to enforce arbitral awards in financial remedy cases'. Perhaps no more should be said on this pending publication of the Law Commission report on pre-nuptial agreements (promised within days), which is likely to deal with a variety of nuptial and alternative dispute resolution issues.

He concludes with helpful reference to two important cases:

  • A Local Authority v DG and others [2014] EWHC 63 (Fam), [2014] 2 FLR (forthcoming) where Keehan J strongly criticised the wholesale failure of all the parties to comply with the court's directions and gave important guidance as to the practice to be adopted where there are concurrent public law and criminal proceedings, in particular in relation to section 98 of the Children Act 1989; and
  • Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] 2 FLR (forthcoming) where, as he said, Pauffley J had to deal with ‘circumstances which I hope will never recur'.

The case management aspects of both of these decisions will be dealt with in a series in Family Law starting in [2014] March 2014.

Finally, the present news as to amendment of Family Procedure Rules 2010 to give effect to the proposed family court and to Children and Families Bill (expected to receive royal assent within the next few days) is that four amendment SIs are in the pipeline:

(1)   The first to pick up points consulted upon: simplified Part 9 financial remedy procedure, eg for variation of periodical payments; appeals from magistrates etc

(2)   Amendment No 2 to cover the matters referred to in minutes of FPRC over past four months, with a couple of detail of detail referred back to the

(3)   Amendment No 3 to deal with Children and Families Bill (which is expected to receive royal assent any day now

(4)   Amendment No 4 to deal with Same Sex Marriage Act

All but (4) are expected to be signed off by FPRC at a meeting early in March. They will then be made, and laid before Parliament, within days of that meeting - say around mid-March. Officially (1), (2) and (3) will be SI's whose commencement seems likely to be the date on which a Matrimonial and Family Proceedings Act 1984, ss 31B to 31P (the statutory embodiment of the family court) commencement Order operates.

David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012); @dbfamilylaw