Updates from the Bench

HHJ George’s Inaugural Newsletter

  |   Latest News, Updates from the Bench

Happy New Year to all our members! And welcome to HHJ George as newly-appointed Designated Family Judge for Leicestershire.

Practitioners can anticipate the DFJ ringing the changes in 2019 to ensure that our average time for disposal of care and private law cases is reduced, quickly and significantly. The steps which the Family Court will expect all practitioners to take are set out in HHJ George’s first newsletter, which focuses on the need for everyone involved to remain as pro-active as possible in ensuring readiness for effective hearings. This applies to all stages of proceedings, but readers will note the renewed emphasis on the need for Issues Resolution Hearings to be as meaningful as possible.

The newsletter can be downloaded here; the extension of time proforma here and the President’s Allocation Guidance here.

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Bundle Warning

  |   Latest News, Updates from the Bench

Practitioners and court users should note that a revised PD27A will come into effect on 23rd July 2018.

 

The bundle practice direction remains largely unchanged, however there are some significant amendments which relate in particular to a new page limit being imposed on certain categories of documents by the new para. 5.2A.  The limits are as follows:

 

5.2A.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, and subject to paragraph 5.2A.2 below, any of the following documents included in the bundle shall be limited to no more than the number of sheets of A4 paper and sides of text specified below:

Case summary 6
Statement of issues 2
Position statement 3
Chronology 10
Skeleton argument 20
List of essential reading 1
Witness statement or affidavit (exclusive of exhibits) 25
Expert’s or other report 40 (including executive summary at the beginning of no more than 4 pages)
Care plan 10

 

Plainly, permission may be given for documents to exceed this length where necessary to enable the proceedings to be disposed of justly.  What is not clear, however, is whether such permission should be sought in advance of the document being prepared and filed, or whether permission can operate retrospectively.  How will parties know in advance how long the as-yet unprepared document is likely to be?  What will be the effect of a refusal to grant retrospective permission for a statement or report to exceed the stated page limit?  Will the statement or report be excluded altogether or will it need to be amended or redacted in some way?  And how will the practice direction apply to documents which have already been filed in current proceedings which are not yet subject to the new rules?  All remains to be seen.

 

Practitioners are reminded that experts will need to be informed in advance of the requirement that their report and executive summary not exceed 40 and 4 pages respectively.

 

Please also take note of the following:

 

Penalties for failure to comply with the practice direction

12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a ‘wasted costs’ order or some other adverse costs order.

 

Don’t say you weren’t warned…

 

The revised Practice Direction can be found here and will be uploaded to our INFORMATION CENTRE in due course.

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Order! Order!

  |   Events, Latest News, Updates from the Bench

Following consultation earlier this year, the President of the Family Division has released numerous comprehensive draft standard orders for use in all family proceedings.

 

It is important for practitioners to note the Practice Guidance issued in respect of the use of the orders.  Use is not mandatory, but it is strongly encouraged.  The most lengthy standard orders (orders in financial remedy proceedings and directions orders for private and public law children cases) are intended to be seen as precedents, from which practitioners ought to select the relevant sections to compile an appropriate order.  Amendment is permitted, where the case requires it.

 

The orders can be downloaded as a Zip file here.  In due course, we will upload the most common orders to the Information Centre.

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Newsletter May 2018

  |   Latest News, Updates from the Bench

Our local Circuit Judge “team” of HHJ Handley, HHJ George and (our newest addition) HHJ Godwin have today issued a joint Newsletter, updating practitioners on performance and issuing a few timely reminders of best practice.

 

Of particular note is the need for advocates to be ready to deal with Issues Resolution Hearings as effectively as possible, to ensure compliance with the PLO expectations.  Issues should be refined in advance at an advocates’ meeting and witness requirements and availability must be provided for the IRH, together with a realistic witness template.

 

The Newsletter can be downloaded here.

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NEW: Domestic Violence Practice Direction

  |   Events, Latest News, Updates from the Bench

The President of the Family Division, Sir James Munby, has issued a revised Family Procedure Rules Practice Direction 12J which will come into force on 2nd October 2017 and is to be applied in all courts considering an application for a Child Arrangements Order when domestic abuse is raised as an issue.

 

The revised PD12J contains a new, expanded definition of domestic abuse:

 

domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;

coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

development” means physical, intellectual, emotional, social or behavioural development;

harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

health” means physical or mental health;

ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.

 

The President also issued an accompanying circular, explaining the reasons for the revisions and reiterating that it is essential that all levels of the judiciary comply with the Practice Direction at all times.

 

PD12J now requires certain matters to be recorded on the face of the order, or in an accompanying schedule.  This is to improve transparency in the decision-making process and to ensure that the Court is aware at every stage of the proceedings what the issues are.  This should hopefully allow for a more speedy resolution of those issues, and the importance of judicial continuity is again reinforced.  The matters to be recorded are the fact that any allegations of domestic abuse have been made; any admissions; any findings of the Court; and any reasons for making a Child Arrangements Order in the event that findings of domestic abuse have been made.

 

The Court must not make any interim Child Arrangements Orders without first having received the Cafcass safeguarding checks and, where domestic abuse is raised as an issue, must not make an order:

unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).

 

However, the presumption that the involvement of each parent in the child’s life is reiterated, with some caveat:

In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.

 

The Court must consider in every case whether a separate fact-finding hearing is necessary.  The same considerations apply to the need for a fact-finding hearing, including proportionality, as before.

 

The revised PD12J can be downloaded here and is also available in our INFORMATION CENTRE.

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