Family Procedure Rules 2010: Remarks & Resources

family procedure rules 2010All this week I have been writing about the Family Procedure Rules 2010, examining some of the most important changes for practitioners and clients. Here are the previous posts in this series:

1. Family Procedure Rules 2010: A Guide

2. Family Procedure Rules 2010: Mediation & the Devil in the Detail

3. Family Procedure Rules 2010: How powerful is the court?

4. Family Procedure Rules 2010: Financial Orders

However the Family Procedure Rules 2010, Practice Directions and Forms wend their way through a host of other areas. Today, before drawing this series to a close, I would like to briefly point out:

Jurisdiction & divorce

Those who practice in transnational cases are used to considering exactly how clients come within the jurisdiction of the English court, in terms of residence or domicile. They will note that in the new generic application for a matrimonial order (petition), there is no reference at all to jurisdiction.

Third parties

It is also now clear that naming a third party in a divorce should not be done unless the petitioner believes that the respondent is likely to object to the making of the divorce. Distressed clients who hold a third party responsible for the breakdown of their marriage often wish to name them. Although this has been frowned upon for a long time some courts have still insisted that if the name is known, it should be given. Now it is quite clearly intended that this should no longer happen.

Cornucopia

The new adoption rules are incorporated within the Family Procedure Rules 2010. There are rules relating to the representation of children in public and private applications; a section is devoted to violence in the home and its treatment across all the courts, all explicitly and painstakingly set out. There are rules on the implementation of the Hague Convention 1996, rules as to service, evidence, disclosure, conduct of hearings, media presence in the courts (no change). There are rules relating to enforcement of court orders here and abroad, new pension compensation sharing rules and so forth, most accompanied by practice directions.

Together these are the backbone of the family law system, all highly relevant and important, and they all pertain to the correct conduct of family law: what to do, how to do it and how best to do it. Ultimately there is no shortcut or substitute: I recommend that you read them.

Forms

Here at Stowe Family Law, one focal point of discussion has been the new forms. Our solicitors have mused upon the style and the new, all-encompassing “divorce/civil partnership/judicial separation petition”. Current petitions are different, and generally it is felt that this confers some dignity upon what is, after all, a solemn legal process. The new form was independently described to me by two solicitors as “Noddy-style”. I question whether it was necessary to dumb it down so heavily.

If the intention is to render divorce no more than a purely administrative process (as per David Norgrove’s Interim Report for the Family Justice Review, which was issued yesterday), then this is an obvious first step towards that goal.

I did smile when I read the Interim Report: if it has taken six years to develop these Family Procedure Rules, and if there are insufficient funds to update family court software, then where are all the resources required to introduce any of the Family Justice Review’s final recommendations going to come from? Cynic that I am, I suspect that many of these proposals will end up on a shelf somewhere gathering dust: another quango, and more wasted time and costs.

Final remarks.

On balance, after spending many long hours reading through the Family Procedure Rules 2010, I don’t think that the changes are too bad.

One exception, however, is the requirement for assessment as to suitability for mediation, which I believe is logistically unworkable. It is a pity that such heavy emphasis has been attributed to pre-application assessment, when involvement in mediation is by no means a guarantee of success. It can turn out to be a complete waste of time and costs, particularly in financial cases, if insufficient care is paid to obtaining good legal advice and ensuring the assets are fully disclosed and agreed. A client may turn up at his or her solicitor’s office, clutching a draft agreement – only to discover that it isn’t worth the paper it’s written on. Then they are back to square one, months down the line, with costs rising.

The Government has budgets and financial considerations for the entire country to take into account. It isn’t overly concerned with Mr and Mrs Smith, out in suburbia, getting divorced. Solicitors’ concerns, however, are for the welfare of individual clients; we want to ensure that both Mr Smith and Mrs Smith leave their marriage in full knowledge that it has been done justly – in accordance with the overriding objective.

On a positive note, bearing in mind the welfare issues involved, I’m looking forward to judges proactively exercising their case management powers in order to achieve the overriding objective. It won’t be easy. They are at the coalface, and they probably have the hardest task of all: setting the lead.

After 6 April, let’s take stock and see how the Family Procedure Rules 2010 are working in practice.

Resources

The Family Procedure Rules 2010

Practice Directions

Forms – Full List

Guidance from the Ministry of Justice

Paper on the Family Procedure Rules 2010 by John Wilson QC

Seminar notes by Lucy Reed of Pink Tape

@eGlance: the electronic toolkit and resource for money cases, published in association with the Family Law Bar Association

The Law Society’s family mediation practice note (31 March 2011)

The Family Procedure (Modification of Enactments) Order 2011

Family Procedure Rules 2010 – Practice Direction 5A (added April 2012)

Many thanks to Karyn Fleeting and Joel Turner of Tinderbox Media, without whose technical support and assistance I could not have hoped to produce these posts.

6 comments

ObiterJ - April 2, 2011 at 12:35pm

Hope you can offer us your “take” on Norgrove’s interim report.

Will there be money? Most probably not. Thus, will the idea of a “Family Justice Service” actually come about? It will no doubt depend on whether it can be achieved within existing resources rather than the application of “new” money.

I was pleased to see the proposal for a “single” family court to replace the present 3-tier structure. This idea was raised, if I remember correctly, by the late Sir Morris Finer – (briefly became Finer J) – back in the 1970s in his report on One Parent Families. His untimely death was a great loss to family justice.

http://www.historyandpolicy.org/papers/policy-paper-48.html#finer

I was also pleased to see a greater emphasis being placed on “judicial continuity.” Far too often a case has to be explained to a new judge or bench of magistrates. It is time wasting and inefficient. Whether it will be achievable in practice is debatable especially in Family Proceedings Courts.

There is a great deal to digest in “family justice” at the moment – Munro Report, new proecdure rules, Norgrove interim report etc.

Marilyn Stowe - April 4, 2011 at 7:43pm

Obiter J
Thank you. Distinguished people have spent a lot of time and trouble and resources considering the options. They have come up with (interim) proposals which ultimately I believe will be quietly ditched. I can’t see how with the best will in the world, the money to implement any recommendations is to be found.
I hope Im wrong. But as I have already noted, the government can’t even afford to update the Familyman court software for the new FPR this week.
Cuts to services are deep and savage. NHS reform is on hold.
I think non essential reforms will take their place towards the back of a very long queue.
Marilyn

JamesB - April 5, 2011 at 10:08am

Ok, Marilyn, but what will happen to the CSA / CMEC proposed introduction of charges and scrapping of the CSA, etc. Do you think that will all be forgotten about also? Will we move to the Gross formula / formula 3?

Marilyn Stowe - April 5, 2011 at 5:08pm

These are interesting questions, James!

For the benefit of readers who are unfamiliar with the goings-on at CMEC and the CSA, I should explain: currently all existing maintenance schemes are being operated by the CSA. The new gross income scheme is due to be introduced from 2012 and the CSA will continue to calculate the level of maintenance payable and collect and enforce payment until that time. The gross income scheme will assess child maintenance based on the non-resident parent’s gross income rather than their net income. The gross figure will be provided by HMRC to CMEC. The idea is that it will avoid delays and prevent the non-resident parent from manipulating their income.

There are also proposals to levy charges on parents who use the CSA. Parents could be charged £100 for an assessment, payable by the resident parent, and this is to be reduced to £50 if the parent is receiving benefits. The only parents that will be exempt from paying this charge will be victims of domestic violence.

As to what will happen to the CSA and these proposals: who can say? It is worth noting, however, that there is fierce public opposition to the plans to charge parents for access. It is definitely worth keeping an eye on…

JamesB - April 5, 2011 at 11:25pm

Yes, whatever the politicians do will encounter fierce opposition. In my opinion though the feminists tend to win what they want. But, that has been under a labour government; I am not so sure the Tories care so much about the Single Mums. It seems to be an impossible choice to choose the nrp or the pwc. Should have left it to the courts, bet the politicians wish they never got involved with the CSA. If it were up to me I’d put it all back to the courts.

What will happen? I don’t know. I think what they propose will happen and eventually the CSA / CMEC will wither and die and be replaced by the Courts. I just don’t think you can do broad brush like they propose. The USSR invented the CSA idea and I hope it goes the same way as Communism did. The Americans and Australians copied it from there and we copied it from them. Nowhere has it been fair or well regarded by nrps.

ObiterJ - April 26, 2011 at 12:10pm

I remember hearing the late Mrs Justice Bracewell say that the CSA was a good idea badly implemented. With respect, I would entirely agree. Were the courts any better at getting the money? I am not sure they were.

Leave a comment