President of Family Division says family proceedings rules ‘not fit for purpose’
In an address to Family Law Bar Association (their annual dinner) on 26 February 2016 Sir James Munby President of the Family Division, included the following comment:
The Family Procedure Rules, like their civil counterparts, are a masterpiece of traditional, if absurdly over-elaborate, drafting. But they are unreadable by litigants in person and, truth be told, largely unread by lawyers. They are simply not fit for purpose. The Red Book, like the White Book, is a remarkable 5 monument of legal publishing, but, I fear, fit only for the bonfire. Rules, to the extent that we still need them, must be short and written in simple, plain English. But in reality, much that is currently embodied in rules will in future simply be embedded in the software of the digital court.
Sir James chairs the committee (Family Procedure Rules Committee: ‘FPRC’) which is responsible for the rules (Courts Act 2003 s 75). He is uniquely placed to do something about what he says is the state of the rules. He can oversee the ‘fitness for purpose’ of the rules. He confuses the rules with the book – Family Court Practice (the ‘Red Book’) – which includes amongst various sources for family procedural rules, commentary on Family Procedure Rules 2010 (‘FPR 2010’). It is this commentary and accompanying procedural guides which separates the statutory sources for the rules, from the book he wants to commit to a bon-fire.
This last confusion by the President raises three important points overlooked in his brief comments: first, what is the present source of family courts procedural rules; secondly, what is the ‘need’ (his word) for any rules at all in his digital court; and, thirdly, the necessity for the rules to be written in clear language?
Source of family courts procedural rules
The rules which define family courts procedure will not be destroyed simply by burning FPR 2010. As we found when we first set up the Red Book the source of procedure for family courts is partly statute (eg parts of Matrimonial Causes Act 1973, Matrimonial and Family Proceedings Act 1984, Senior Courts Act 1981 – and so on); partly the rules themselves (including Civil Procedure Rules 1998 (‘CPR 1998’)); partly practice directions and guidance; and partly common law. We have done what we can in the Red Book to reflect this (statutes in Part II, rules in Part III and practice guides in Part IV), save in the case of the common law.
Take the common law, for example, as a source for procedure. Procedure for setting aside matrimonial finance orders was before the Supreme Court (Sharland v Sharland  UKSC 60 and Gohil v Gohil  UKSC 61; and see https://dbfamilylaw.wordpress.com/2015/10/17/application-to-set-aside-a-family-proceedings-order-a-procedural-guide/ ) last October (and touched upon by Mostyn J last month in DB v DLJ  EWHC 324 (Fam)); yet as matters now stand procedure for an application to set aside is governed by common law only (reflected we hope in Guide E6 in the Red Book: the law on which the application is based is common law also). Disclosure in family proceedings is governed almost entirely by common law – the extensive rules on disclosure in civil proceedings (CPR 1998 Part 31) are excluded almost entirely from FPR 2010 (as explained by Moylan J in Tchenguiz-Imerman v Imerman (Rev 1)  EWHC 3627 (Fam)). The whole subject of ‘use of disclosed documents’ (documents covered by the ‘implied undertaking’) must be worked out from the common law (probably best summarised in CPR 1998 r 31.22).
If you are going to replace the family proceedings rule-book there is a lot more than just FPR 2010 which must be replaced and redefined to cover all the needs of family proceedings. Burning a set of rules will not get rid of the statutory or the common law sources of procedure.
Need for rules
Procedure defines how a course to justice is achieved (eg defining the law and marshalling the evidence). Procedural rules regulate that course. They protect the litigant from the judges – mostly in relation to case management – who may wish to hasten or impede the fairness of a fair outcome.
Protection for the litigant from the judges and the court administration which is provided by the rules cannot be stressed too often. Without rules, judges as court administrators can run cases as they wish. Case management becomes a source of unpredictable outcomes. I know that is not what Sir James wants; but the logic of what he urges may be to encourage unfair outcomes and unpredictable proceeding to justice.
However, to be effective and if they are to achieve what they are designed for, rules must be clear to all those who use them, judges, lawyers and lay-people alike; for otherwise, like the pre-Reformation bible they will exist only for the legally qualified initiates (see https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/). However, it must be understood that not all concepts which the law seeks to cover and define are simple. Fairness reduced to a lowest common denominator may risk impeding fairness; and that would defeat the primary object of the process.
Clarity of language
If indeed the rules are ‘absurdly over-elaborate [and] unreadable by litigants in person’ then it could be said that the rules as a whole are unlawful (not what Sir James intends at all, I am sure). The law which empowers the drafting of FPR 2010 defines the intended readability of the rules. In drafting rules (as required by Courts Act 2003 s 75(2)) FPRC must exercise their powers to make rules (s 75(5)):
(5) …with a view to securing that—
(a)the family justice system is accessible, fair and efficient, and
(b)the rules are both simple and simply expressed.
So, well before FPR 2010 were in place, the committee already had a statutory duty to produce rules which were simple and clear, the better – it might be said – to secure access to a fair and efficient system of family proceedings. Has this been achieved?
Probably some rules are not clear. There are bits covered only by statute. There are gaps (remedied by the common law as mentioned above). But Sir James is perhaps harsh on the authors of the rules – for whom, be it remembered, he is responsible. Various styles are at work in FPR 2010: some from the 1980s (part 9 and wardship in part 12); some more or less direct from the 1990s (derived from Civil Procedure Rules 1998 about whose style which Sir James is also harsh); and some from Acts of Parliament going back to the 1970s and before.
The criterion must surely be that rules be clear – clear, so far as possible, as to what they seek to achieve; and clear in the way they are written (as s 75(5) requires). They should incorporate all sources – rules, statute and common law, with practice directions added in a way which is consistent and democratic (ie not just random additions from the President’s office and form High Court judges). This would be the procedural basis for the variety of sets of proceedings covered by family law procedural rules.
‘Simple and simply expressed’
Sir James demands: ‘Rules, to the extent that we still need them, must be short and written in simple, plain English.’ Indeed, that must be the object of drafting, as Crime and Courts Act 2013 s 75(5) demands. All sources of the procedural rules must be comprised; and fairness must please not be lost in digitalisation and in seeking to reduce everything to a lowest common denominator.
St David’s day, 2016