73 DAYS BECOMES 50 WORKING DAYS Please President, let t’Lad at t’far end in to help

From Monday 10 February 2014 it would make more sense that the run-up be measured in working days to FC-Day. FPRC says the start date fo the family court (FC-Day) is intended to be 22 April 2014 (the Tuesday after Easter); though this cannot be confirmed yet. From Monday there are 49 working days to go. By my estimation there is still a lot to do in those 49 days.

It is now time for those of us with an ability to help, to do so; provided that those running the gig – the new family court – will let us into the club where the gig is being held. Since last Thursday ‘mandatory orders’, mutate firmly to ‘standard’ orders; and any drafts ciculating are no more than drafts by a group of unidentified (except Mostyn J) orders. At last level-headed democratic Ministry of Justice civil servants confirm what most of us – save the judges involved – knew, or should have knowne. Alterations to procedural rules in this case must be part of a rules change with appended practice direction. … and what a waste of precious time (‘I feel me much to blame, so idly to profane the precious time: Shakespeare, Henry VI pt 1 (I think)). All that work  – which could have awaited some proper consulation and the appropriate rule and practice direction; and which could have been chanelled into something more urgent. How about Simon Hughes MP’s latest idea of making courts more friendly: High Court judges could run a charm school for security staff and court counter people (where any are left on counters).

The orders will not emerge finally for many months. They will need to be much more carefully prepared: they contain some silly mistakes and one or two obvious illegalities (to be explained in a couple of days). They were being prepared at a time when people with energy and enthusiasm (eg Mostyn J and anyone working with him) could have been usefully employed on projects which can – lawfully – come to fruition by or before 22 April 2014.

Some rules are in draft: even those who could usefully comment on the draft rules may not see them. It is like the story of Geoffrey Boycott (a Yorkshire and English cricketer) of whom it was said, that as he was leaving the field – he had been bowled – he mentioned to his fellow player who was going in to bat: ‘Their spinner always bowls a googly ont’ fifth ball; but don’t tell t’lad at t’far end’. ‘Lad at t’far end’ was about to overtake Boycott in the Test averages. For a non-cricketer, it suffices to say: it would have been more to the greater good that everyone knew what Boycott knew, but which, for selfish reasons, he did not want a rival to know.

Are not those who want to help the Ministry of Justice in relation to The President as Boycott, like ‘Lad at t’far end’? And what help we could provide? That is for another day (eg parallel mediation and case management, for a start, I’d say). For now, based only on some of the statutory provisions (this is written before I have properly digested the Oct/Nov?December FPRC minutes), the following are a few of the things which need done:

  • Amendments to MFPA 1984 (ss 31B – 31P) and amendments following the Children and Families Bill – nearing its tortuous journey through Parliament.
  • Matrimonial and Family Proceedings Act 1984 s 31F(6) enables orders to be infinitely varied, rescinded, set aside and so on – yes, really. This must require a rule or two, some forms and even a practice direction
  • Will the decision of a judge to conduct a litigants in person’s cross-examination need to be minuted in some way; or even be the subject of a short judgement (s 31G(6))?
  • What are the rules to be concerning applications for ‘revival’ of an order or for its variation on behalf of a child by eg his/her carer (s 31L(4)-(6))
  • Is the Transparency Guidance to be turned into a proper, democratically produced (per Constitutional Reform Act 2005) rule – to direct a judge by practice direction is surely unlawful? – before a child is hurt or exposed by needless publicity and a rushed or inappropriate transparency decision?
  • Rule changes or a practice direction is promised for the standard orders: there is an area where a group of solicitors could truly help.

A few practitioners, including mediators, are needed. They can prepare the new drafts for wider consultation. They will be mostly lawyers and mediators who are outside the hallowed pale of the square mile around the RCJ. They – solicitors and soon mediators, I would guess – draft the massive majority of Family Procedure Rules 2010 Part 18 and financial remedy draft orders (for example). It saddens me to say it this way, but they would have collectively, much more local and relevant experience than a High Court judge and his RCJ local cronies (cronyism was Blair’s thing, no?) – if it is they  who has drafted most of the orders.

Let us be counted on this one; and let us do what we can to help. Oh and it should go without saying: in this context the #keepitoutofcourt slogan remains remarkably negative and unhelpful.


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