DRAFT JR PRE-ACTION PROTOCOL LETTER TO LORD CHANCELLOR: does it work?

Dear Lord Chancellor

The family court: Matrimonial and Family Proceedings Act 1984 s 31B-31P

I write this as an officer of your courts, a family lawyer of over forty years’ standing and a solicitor advocate since 1997 (I attach a curriculum vitae). I hope you will consider that I have sufficient interest in this matter (Senior Courts Act 1981 s 31(3)).

This letter both asks you for a decision on commencement of the family court and, failing that, it operates as a letter under the judicial review pre-action protocol.

I am the applicant. My address is ##. I shall seek costs protection (most recently R (The Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin);  R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192).

I shall ask for a prompt decision since, rumour has it – and much of your law reform in this area seems to be driven by rumour at present – that the family court is due to commence business towards the end of April: ten weeks away (allowing for an Easter break). Even that date is not certain. Class Legal assert date early in April 2014. The interest of Class Legal, and one of their authors (Mostyn J) in all this remains a mystery: were I administering justice I should not be entirely comfortable. You will note that Mostyn J drafts many of the proposed forms; and tehn Class Legal profit from that work.

It is noteworthy that your department’s Legal Aid Agency left hand does not see that the family court right hand has not caught up with it yet. In Supporting the introduction of the single Family Court – Changes to the family legal aid remuneration schemes (response to consultation: 29 January 2014, Ministry of Justicehttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/276343/supporting-introduction-single-family-court-response.pdf ) assumptions are made which are not born out on the family court ground.

Issue

This letter asks you to make prompt decisions as follows:

  • That you should immediately announce a date for the coming into operation of the family court; and
  • That you should make clear and properly consulted upon (as need be) decisions as to (1) what the court is going to do and (2) as to how, procedurally, it is to run. The decisions required of you now will, I hope, be clear from what follows.

Grounds: details of the matter being challenged

You will be aware of the terms of Crime and Courts Act 2013 and that it received royal assent on 13 April 2013. Sch 10 makes provision for the family court.

So far as I can tell, you intend that such of family proceedings which are covered by Matrimonial and Family Proceedings Act 1984 and Magistrates’ Courts Act 1980 s 65 be covered by one court (in the remainder of this letter I shall call these ‘family proceedings’).

There are other proceedings covered by the term, ‘family proceedings’. I should prefer the term family breakdown proceedings.

Your family court is termed single. It is not:

  • Child support proceedings are by MFPA 1984 Sch 1 para 3 are family proceedings; yet only a small group of such proceedings will be seen in your family court;
  • The High Court )Family Division) remains aloof from all this; and
  • A variety of what most of us would call family proceedings are still dealt with in the county court or High Court (Chancery Division)

Procedural: grounds for review

I am familiar with Sch 10. It deals essentially with matters of court procedure. In family proceedings it leaves the following obvious procedural questions; and a number of questions which arise from the ill-amalgamated present rules.

Of Family Procedure Rules 2010 (which regulate proceedings under Matrimonial and Family Proceedings Act 1984) the following at least needs to be done if the objects of the 2013 Act and of your Government’s understandable drive for reduction of costs are to be achieved:

  • Case management must be massively tightened (Family Procedure Rules 2010 Parts 1 and 4): I worked with Ryder J on this; but cannot find out from the President’s office what has happened to our work (I attach a paper I sent to the President after Christmas: I know it has been placed on his desk, but thus far it is not acknowledged). I do not see how in conscience you can cut legal aid till the main costs driver remains untamed: namely inefficient judicial case management.
  • FPR 2010 Part 9 needs sorting out so that it does not provide for two courts.
  • Are appeals from the magistrates in the family court to be under Magistrates’ Courts Act 1980 s 111A (with its strict time limit) or under Children Act 1989 s 94 and FPR 2010 Part 30 where time can be extended.
  • How are appeals in different levels of one court to be resolved?
  • Will justices’ sit with judges as Finer (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) envisaged.
  • Are costs rules (Part 28) to be harmonised?
  • Are the same rules to apply in the High Court and the family court?
  • What exactly do you envisage will be the role of the lay justices in all this?

This list will be developed and clarified should judicial review proceedings become necessary.

Of the rules and Matrimonial and Family Proceedings Act 1984 (as amended):

  • What is meant by s 31F(6) and what rules do you intend to make to deal with it;
  • In practice, and so that justice is done between the parties (see eg Judicial Working Group on Litigants in Person: report (Judiciary of England and Wales, July 2013) – http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf how do you see s 31*() working; and what procedural safeguards do you intend to build in to deal with what Parliament has required (eg a judicial certificate as to when s/he took over and in what terms cross-examination). This is the more important since your wholesale near destruction of the civil legal aid scheme. It is exactly tow weeks younger than me; but I reckon I’ve worn better.
  • How do you intend to deal with enforcement for children: where are draft rules to deal with this?

You will be aware of the absurdities which your staff have perpetrated in regarded to ‘mandatory’ draft orders (as you will understand, I am sure, the very phrase is oxymoronic). This has come and gone. I wrote to Sir James Munby’s office yesterday along the lines of:

‘Rumours are flying this way and another as to the position of the ‘mandatory’ – or are they ‘draft’ – orders. Quantum – with which Mostyn J has also, or has had,  links – is leading solicitors to believe they are already in force, I am told. Some district judges think the same. Other people – including a member of FPRC, as I understand him – thinks the whole project is on hold, even abandoned. Can you tell me which it is. I cannot find out the vires of anyone for the forms.’

Making of directions, setting out guidance

Sir James Munby P has promulgated a Guidance, various requirements in relation to children proceedings; and there is the strange ‘mandatory’ orders initiative. Mostyn J’s undemocratic directions to your officers (we solicitors) – without any obvious reference to you – was contained in para [56] of UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam) (I understand the Law Society may be approaching you about this).

We are all aware of how practice directions are made (Constitutional Reform Act 2005; and see Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171). The law cannot be changed by a rule, let alone a practice direction (and certainly not by mere President’s guidance). In Jaffray v The Society of Lloyds [2007] EWCA Civ 586 Buxton LJ emphasised the point (which I am sure you well know):

[8] That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628. And quite apart from that general rule, it is apparent from the wording of CPR 52.17(1) (which speaks of the jurisdiction not being exercised unless various conditions, including avoidance of real injustice, are fulfilled) that, as the helpful commentary in vol 1 of Civil Procedure explains, it was passed to limit, and not to extend, the operation of the supposed jurisdiction under Taylor v Lawrence.

So far as I can see, no attempt is being made to introduce his procedural reforms by the President by any obvious legitimate means. In this he acts as an administrator. Qua administrator he is, I believe, acting illegally and ultra vires his office.

Details of the action that the defendant is expected to take

On behalf of my colleagues and all whom will use the family court I shall seek as a remedy a mandatory order that you deal with the question of the setting up of the court; and that thereafter you and the office-holders in teh Family Division will act reasonably and within clearly defined vires. (There are many (including myself) who would like to help. Please use us. The President fails to do so; save for a small unapproachable coterie drawn, I suspect – I have no means of knowing for all is so secretive – from within a mile or so of the RCJ.)

The details of any interested parties

Interest parties might include

  • Gingerbread (single parent families);
  • Fathers for Justice;
  • The Law Society;
  • Family Law Bar Association.
  • I should include Resolution (to whom I have sent a copy of this letter). They seem to be losing interest with courts. I believe that – remarkably, since a unified family court was once a SFLA article of faith – they have taken almost no part in preparations for your family court.

The details of any information sought

Let us see what is the response to this letter; and (as appropriate and if it comes to that) to any acknowledgement of service you may file. I will not burden this application with seeking lengthy production of documents at this stage. Anything you may wish to send on will, of course, be gratefully received and carefully read.

Proposed reply date

You will be aware of the urgency if the new family court is going to have a proper chance of success in April. Assume the start date is mid-April – say 16 April – then, allowing a week for Easter that leaves nine weeks. I would suggest you have till 17 February 2014 to reply. If I was dissatisfied, that would leave me 10 days to issue (till 27 February); you would have till mid-March to file your acknowledgement of service. With an expedited hearing of permission (perhaps rolled up) we would have a chance of a decision by early April.

I think for both our sakes I must press you for a reply by 17 February 2014.

Yours …

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