75 DAYS TO FAMILY COURT START DAY FC-DAY – er, we think…

Diary of a new family court

In outline the present position is:

  • Report of the Committee on One-Parent Families July 1974 Cmnd 5629 recommends a unified family court
  • Family Justice [sic – mostly about children proceedings] Review – Final Report (November 2011), published
  • Crime and Courts Act 2013 Sch 10 provides for a ‘single’ family court
  • April 2013: evidence (sotto voce) that Mostyn J and chosen friends (mostly within the RCJ special pale) are working on draft orders
  • May 2013 Sir James Munby P starts telling family lawyers what he sees from the window of his  chambers [sic – for lay readers: that has nothing to do with ‘in my lady’s chamber: Sir James was a barrister and unlike most of us barristers work in ‘chambers’]. In what follows these will be referred to as ‘fenestral musings’.
  • 13 June 2013: sitting in the Court of Appeal Sir James confirmed that ‘necessary’ means ‘necessary’ (Re H-L (A child) [2013] EWCA (Civ) 655 para [3]: http://www.bailii.org/ew/cases/EWCA/Civ/2013/655.html)
  • July 2013: fenestral musing indicates that Sir James Munby P has in mind ‘mandatory’ ‘draft’ orders.
  • 30 September 2013: Consultation closed on MoJ proposals for four draft amendments to Family Procedure Rules 2010 in preparation for new family court – yes, I said four
  • November 2013: ‘Private Law Working Group’ under Cobb J reports
  • Draft orders emerging – said to eb by turns ‘mandatory’ or ‘draft’.
  • 20 December 2013: challenges to Sir James’s office, Ministry of Justice and whosoever would listen as to what was the vires for these drafts was: still no answer at FC-Day -75
  • 20 December 2013: not previously notified consultation date for draft orders extended to 31 January 2014.
  • 16 January 2014: Sir James tells judges and law reporters that certain children proceedings must be published (Practice Guidance (Transparency in the Family Courts) [2014] EWHC B3 (Fam)). No statutory authority for this ‘guidnace’ is given:
    http://www.bailii.org/ew/cases/EWHC/Fam/2014/B3.html).
  • 4 February 2014: confirmation that orders are now intended to be ‘standard’ and that their introduction will be postponed – probably till the autumn; and that when the time comes they will be by practice direction or rules amendment.
  • 6 February 2014: Ministry of Justice confirm that commencement date ‘may’ be 22 April 2014

So I hope all that is clear. We have a variety of ideas and working group ideas, ‘guidance’ which is of of dubious vires (to be explained on another day) and a bill still going through Parliament (Children and Families Bill).

The four proposals for rule changes were partly helpful (simplified financial remedy procedure for lesser money and variation cases) and partly (as far as I could see) unlawful: no-one seemed clearly to have taken into account that magistrates’ court appeals are now governed by Magistrates’ Courts Act 1980 s 111A which defines a finite time limit in statute: to change that – as I see it – requires primary legislation.

The 31 January date for end of consultation passed with lots of people willing to help, but the President calling mostly on Cobb and Mostyn JJ, and through them to unidentified cronies (perhaps – I cannot know – mostly in London). If from London this is doubly inefficient: the Principal Registry of the Family Division is in some way outside the family court (as yet unofficially), and only a very small proportion of PRFD and county court work is done in London.

So where does that leave the process of law reform? Watch this space, the saying is – but in truth the space is much bigger than it should be. Regs are in draft, practice directions as guidance in official – not musing – form are now promised. Unclear, or unlawful, ‘law’-making leaves expense and procedural injury, and needless private expense, in its wake.

So where does that leave the process of law reform? ‘Watch this space’, the saying is – but in truth the space is much bigger than it should be.

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