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07 JUN 2018

Practice Guidance: Standard children and other orders

Sir James Munby

President of the Family Division

Practice Guidance: Standard children and other orders
On 30 November 2017 I issued 'Practice Guidance: Standard financial and enforcement orders' [2018] Fam Law 89 [1]. These orders, which are available in both hard and soft formats, as well as being generatable by commercial software, have been very well received. Indeed, I have learned that they are being considered for adoption, in suitably modified form, in Hong Kong. I have no doubt that those orders are achieving the objective I identified, namely to promote national consistency, and to avoid for the future, so far as possible, ambiguities in the meaning of the wording of an order.
In my guidance of 30 November 2017, I said:

'Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised … We are no longer living in the world of the fountain pen and biro (which even today still account for far too much drafting of orders) any more than in the world of the quill pen. My ambition, therefore, is that the standardised orders should be available to everyone electronically. The use of standard orders produced at the press of a button will obviate the need for drafts from counsel and solicitors scribbled out in the corridor. It should assist greatly in reducing the time judges and court staff spend approving and completing orders. And the existence of a body of standardised and judicially approved forms of order will go a long way to assisting judges and others – mediators for example – faced with the increasing number of litigants in person who cannot be expected to draft their own orders.

In the long run, this project is critically dependent upon the availability of modern, up-to-date, IT in the courts. At present, the full use of standardised orders is still impeded by the inadequate state of the IT available to judges and courts [but] the steady implementation of the ongoing court modernisation programme gives real cause for optimism that we will fairly soon be seeing real changes in our IT as the digital court of the future becomes a reality.

The digital revolution will enable us to carry through to completion this radical revision of court orders and how they are produced. Court orders will be standardised and digitised, with standard templates, self-populating boxes and drop-down menus designed to ease and shorten the process of drafting and then producing the order. Given the marvels of modern IT, why should we not be able to hand every litigant in all but the most complex cases a sealed order before they leave the courtroom?'
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One of the longest orders is No 1.1 – the Financial Directions Order. This seeks to capture virtually every scenario likely to arise in a financial remedy case. It includes some rare outliers, such as a precedent for an order for disclosure to trustees. Plainly, such an order would only be made exceptionally but it was necessary, equally plainly, for the standard order to be as comprehensive as possible. However, recognising the tedium of having to work through the full scope of the order it was decided to produce as Order 1.2 a shorter version of the Financial Directions Order containing those clauses most commonly encountered and used. 

Experience has shown that, even in the short time these orders have been in general use, practitioners have built up a library of orders which they then re-use, suitably adapted, in subsequent cases. Pending the introduction of suitable IT in the courts, an alternative route to by-passing the length of the comprehensive order is to use commercial software which allows the user to pick the clauses needed for a specific case from a menu and then generates the order in Word format.

On 13 March 2018 I issued for consultation the second batch of Standard Family Orders: [2018] Fam Law 371. This included, as Orders 7.2 and 8.2, lengthy precedents, running to 88 and 131 paragraphs respectively, of case management orders for private and public law cases. Again, the objective was to capture virtually every scenario likely to arise, and as such they included some rare outliers. 

The responses to the consultation identified some useful drafting and structural points, which have been taken into account in finalising the drafts, but the overwhelming majority of the responses complained at the length and, sometimes, the structure of Order 7.2 and, in particular, Order 8.2. 

The purpose of Orders 7.2 and 8.2 was to provide a comprehensive menu from which the appropriate orders and directions could be easily selected and used in shorter form template orders. Orders 7.2 and 8.2 are now framed as libraries of precedents rather than order templates. They include, at the start, hyperlinked tables of contents to make selection easier. The idea is that clauses, selected from the relevant precedent library, are used to augment and/or modify the shorter form template orders referred to below. 

The team has produced a number of shorter Public and Private Law Case Management Directions Orders (Orders 7.3-7.6 and 8.3-8.5 respectively) which seek to cover the situations most likely to arise. In concept, these mirror the idea of Order 1.2 – the shorter version of the Financial Directions Order. Alternatively, practitioners can by-pass the length of Orders 7.2 and 8.2 by use of commercial software. Just as with the Financial Orders, I anticipate that practitioners will swiftly build up a library of their own precedents for use in later cases.

Order 7.7 is a summary private law order for litigants in person, designed to give a simplified summary of the issues to be considered at the next hearing and what they must do to get ready for it. It may either be used as a free-standing order or as an attachment to a template order. 

Some respondents to the consultation adverted to certain local practices whereby the order made by the court replicates in its entirety the case management order currently in use but with the unused paragraphs struck through rather than entirely removed. Such practices should cease. In future, orders as drawn and sealed by the court should contain only those paragraphs that apply, and there should be no sign, even if struck through, of unused text.

I therefore promulgate with this Guidance the standard children and other orders for general use. The orders to which this Guidance relates are those in the attached zip file. With my approval, these orders, like the first batch, have been prepared in accordance with the ‘House Rules’ referred to in my sixth ‘View from the President’s chambers’: [2013] Fam Law 1260, 1263.

These orders do not have the strict status of forms within Part 5 of the FPR 2010 and their use, although very strongly to be encouraged, is not mandatory. Moreover, a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case. There will be many circumstances when a variation is required and departure from the standard form will not, of course, prevent an order being valid and binding. The standard orders should however represent the starting point, and, I would hope and expect, usually the finishing point, of the drafting exercise.
The orders are colour coded. The text in red colouring is used where a selection has to be made by the person drafting the order. The text in SMALL CAPITALS with green colouring is where the draft orders incorporate an editorial comment.

This Guidance brings to a close, at least for the time being, the Family Orders Project which I established and which has been driven forward with his usual tenacity and skill by Mr Justice Mostyn. It is right to record, however, the enormous assistance which he and I have had from his band of enthusiastic collaborators, whose participation at various times and in relation to different parts of the Project has been so invaluable and without whose help it could not have been brought to so satisfactory a conclusion:

Janet Bazley QC 
Mr Justice Cobb 
HHJ Martin Dancey
Edward Devereux QC
Teertha Gupta QC 
HHJ Edward Hess
Amy Kisser 
Maggie Rae 
Alison Russell QC (now Ms Justice Russell) 
David Williams QC (now Mr Justice Williams)

I thank them all. A special word of thanks is also due to Melissa Chapman of Class Publishing, whose editorial, proof-reading and formatting skills were essential in the final preparation of the various orders. 

James Munby, President of the Family Division
6 June 2018

[1]               These were reissued on 22 January 2018 in order to correct a trivial error affecting only a very few orders: [2018] Fam Law 216. A further corrective update was issued by me on 15 May 2018: [2018] Fam Law 730.

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