53. We consider that the proposed modified Form E will be more accessible for LiPs, and we commend it.
54. As indicated above, there is useful guide to completion of the Form E in the Advicenow guide.
55. The FDR is a key stage in the financial remedy journey. The conduct of the FDR between two LiPs requires particular judicial skills, as the Judge endeavours to strike the right balance in cases involving unrepresented parties between assessing (sometimes even formulating) the relevant arguments and giving relevant advice, while being the neutral arbiter, as well as facilitator of settlement; this is particularly difficult if, for instance, the financially stronger party seeks to influence the territory for negotiation with a ridiculously low offer.
56. In cases involving unrepresented parties, there is very little scope for out of court negotiations during the FDR process (i.e. once indications have been given), and Judges need to be alert to promoting negotiated outcome in court while not bull-dozing or rail-roading either or both of the parties.
57. Specific judicial training in this area may be warranted, and indeed welcomed by the full-time and part-time judiciary.
58. The Family Orders Project has standardised the relevant orders, and has (wherever possible) endeavoured to use language which is readily understood by LiPs.
59. Standard orders may of course be varied by the court or a party if the variation is required by the circumstances of a particular case; so when drafting orders other than those using the standard templates, or other associated documents, we encourage Judges (and practitioners where appearing on one side) to use language which is readily understood by LiPs, therefore:
a. LiPs are more likely to understand what is being asked of them better if their NAMES are used, rather than the terms Applicant / Respondent’;
b. The traditional expression “File and Serve” may be readily understood by lawyers but is perhaps less well understood by LiPs. The standard orders have been adapted to use the expression “send to the court and serve on the other party”. In some instances it may be appropriate to include in an order a case-specific simple explanation of what the word “serve” means. Typically this may simply mean sending a document in the post, but there are of course instances when this is not sufficient.
c. Penal notice. In a financial remedy case the applicant is entitled to the endorsement as of right, (a point which should be wider understood by judges and court staff). We consider that it is probably wise for each order to be endorsed with a penal notice at the time it is made (often orders are seen to say “a penal notice is attached to this paragraph” which is not enough). The full content of the penal notice should be prominently displayed on the front of the copy of the order and/or spelt out in the body of each paragraph to which it applies. All the financial orders in the suggested standard orders wardrobes follow this suggestion.
- d.“Schedule of deficiencies” should perhaps be described in the definition section as “a list of all questions that have not been properly answered and an explanation of what is missing”
- e."Chattels" should perhaps be described in the definition section as “property and belongings other than land or houses”
- f.“Points of dispute” should perhaps be described in the definition section as "things disagreed about and which the court needs to decide"
- g.Further, it may be preferable to avoid “providing only that” (using instead "as long as") and “adjourn” (using instead "postpone").
60. Judges invariably are required to play a greater role in the drafting of final and other orders where the parties are unrepresented. Designated Family Judges and Court Managers need to be particularly aware of this, so that sufficient time is allowed in the court diaries for the Judge to attend to this at the end of FDR or final hearing.
Case management and LiPs
61. Inevitably judges will be required, in order to do justice between the parties, to offer a degree of latitude to the LiP whose preparation and presentation of case does not conform to the rules. That said, in financial remedy cases as in all others, the judge has a duty to manage cases ‘justly’ and ‘proportionately’, and any indulgence offered should never be allowed to compromise due process. Judges should have firmly in mind their duty actively to manage their cases (rule 1(4) of the FPR 2010) and use their wide case management powers (rule 4 ibid.) to give effect of the overriding objective; this is perhaps particularly important in cases involving LiPs.
62. We take this opportunity to warn judges against going ‘too far’ to indulge the LiP. As Kay LJ observed (Munby LJ & Lewison LJ concurring) in Tinkler & Anor v Elliott  EWCA Civ 1289 (civil proceedings where LiP suffered mental ill health and had made a very late set aside application):
“An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence...The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. [The judge] regarded this to be "a special case on its facts" but it could only be considered such if one goes too far in making allowances for a litigant in person.”63. The point above is also well-illustrated by the family case of Re M (Placement Order)  EWCA Civ 1257  1 FLR 1765 in which the Court of Appeal upheld the decision of a circuit judge to strike out an appeal, or purported appeal, against the making of a placement order for want of compliance both with the relevant rules and with court directions: per Wilson LJ: “rules require compliance”  even where the proposed appellant was a LiP.
64. Moreover, and as the Court of Appeal (Re W  EWCA Civ 1177) and Family Division (A Local Authority v. DG  EWHC 63 (Fam) and LB Bexley v. V  EWHC 2187 (Fam)) have recently emphasised, orders are orders: “Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders”. Compliance with court orders is to be expected of all parties, including LiPs.
65. As the President indicated in his 12th ‘View’, in this field of family law “[w]e will need to make our judicial processes more inquisitorial”. In that respect it is noted that the Course Directors responsible for Family courses at the Judicial College have been commendably proactive in educating Judges in managing cases involving LiPs. The recent Child Arrangements Programme seminar programme included a dedicated session on conducting the hearing involving the LiP, led by Professor Rosemary Hunter (Kent University) and Professor Liz Trinder (Exeter University).
66. We understand that Professor Hunter and Professor Trinder have undertaken research commissioned by the Ministry of Justice on LiPs in family cases; we await their research findings with considerable interest. We recognise that their research findings and recommendations may well inform the approach of the courts to financial remedy cases.
67. In the meantime, and in any event, we consider that judges could learn from the Californian research entitled ‘Effectiveness of Courtroom Communication in Hearings Involving Two Self-Represented Litigants’ conducted by Greacen Associates, LLC on behalf of the Self-Represented Litigation Network (April 2008). This emphasised the value to the LiP of the Judge approaching a hearing by:
- Framing the subject matter of the hearing
- Explaining the process that will be followed or guiding the process
- Eliciting needed information from the litigants by
- Allowing litigants to make initial presentations to the court
- Breaking the hearing into topics
- Obviously moving back and forth between the parties
- Maintaining control of the courtroom
- Giving litigants an opportunity to be heard while constraining the scope and length of their presentations, and
- Giving litigants a last opportunity to add information before announcing a decision
And see also ‘Handling Cases involving Self-Represented Litigants: A Bench-guide for Judicial office holders (Judicial Council of California Administrative Office of the Courts)(January 2007): www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf.
- Engaging the litigants in the decision making
- Articulating the decision from the bench
- Explaining the decision
- Summarising the terms of the order
- Anticipating and resolving issues with compliance
- Providing a written order at the close of the hearing
- Setting litigant expectations for next steps, and
- Using nonverbal communication effectively
68. We consider that specific training may be indicated in relation to financial remedy courses. For instance:
a.At First Appointment, being inquisitorial in assisting parties to identify the issues, and (where appropriate) assisting in the drafting of relevant questions for the other party.
b.The conduct of the FDR between two LiPs requires particular judicial skills, as indicated above.
c.At the final hearing, if necessary, conducting the hearing by offering to be the conduit of questions – or following the approach of Tugenhadt J in Mole v Hunter  EWHC 658 (QB):
“I conducted the hearing by asking first Ms Hunter and then Ms Mole about each of the matters complained of in the counter claim. I then gave each of them an opportunity of asking questions of the other. Ms Mole chose to ask no questions. I then went through the chronology of events as I understood them to be, inviting each of them to correct or complement the understanding I had formed on my own reading of the papers and to make their submissions. Before doing this I invited each party for their consent to the procedure I proposed to adopt, although in my view CPR r.3.1 (2) (m) is sufficiently wide to make such consent unnecessary. I also indicated that I also proposed to hear both applications before me before making a ruling on either of them”69. Judges need to be alert to ensuring that LiPs understand the rationale for the various steps taken in financial remedy cases. Therefore:
a.Plain English explanations for “you must do x by y” will often be necessary and helpful;
b.The disclosure requirements should be explained (i.e. this is not a case of your ex-spouse prying but it is about making sure that the court has the right information on which to make fair decisions, and reassure / prevent misplaced suspicion)
c.The nature of the ongoing duty of full and frank disclosure; it is important to underline the knock-on effects of non-compliance (Cost, delay, persistent suspicion);
d.At the First Directions Appointment, there should be a standard explanation of what the FDR is for… so that LiPs can mentally prepare for such a hearing: this should be more than just “Come prepared to settle”, but explaining that judge will be giving summary of his/her ‘feel’ for the case and what sort of outcomes might be reasonable, the fact that they may be quite direct in an attempt to help people find a way of avoiding a trial.
70. Generally, at all stages, Judges need to be alert to providing to the LiPs a summary of the section 25 MCA 1973 criteria, and which factors will be of particular relevance / importance on the facts of the individual case. The Judge must explain the breadth of discretion and the fact specific nature of financial remedy cases.
71. Training for the judiciary on conducting financial remedy cases should include all Deputy District Judges undertaking Financial Remedy work.
72. A separate Working Group chaired by Mrs Justice Asplin has been considering the current Guidance in relation to McKenzie Friends. That report has been commissioned by the Judicial Executive Board, which will be considering the same shortly. We reserve comments about the role of McKenzie Friends in financial remedy cases until we have seen that report.
73. As indicated above, the government guidance on their represent-yourself-in-court.gov.uk site is too abbreviated to be helpful.
Family Justice Council ‘Matrimonial Needs’ Working Group
74. We have liaised with the Working Group chaired by Roberts J. The work which we have undertaken (looking at practice and procedure) will complement the work of the Matrimonial Needs Working Group (looking at the substantive issues in ‘needs’ cases).
75. Obtaining an order for financial relief is occasionally only half the battle. Enforcement can be challenging, particularly if the defaulting party is defiant, obstructive, and/or determined to manipulate the situation.
76. We believe that it would be helpful for more information to be made available for LiPs about enforcement of orders at the point at which the Order is made. We are concerned that those ordered to pay are likely to be more financially powerful, and may abuse that power to repress the weaker party. There may be good sense in HMCTS issuing a guide to enforcement to send out to the parties when the final Orders are drawn.
STANDARD FORM ORDERS IN FINANCIAL REMEDY PROCEEDINGS
77. The group has been invited by the President to “create a comprehensive body of standard form orders” for use in financial remedy cases. The group is content to endorse the policy need for such a body of orders to promote consistency and clarity and accessibility to litigants in person in the single family court.
78. This task represents the continuation of the extensive work already undertaken in this area by a team lead by Mostyn J. This work began with the creation of the Family Orders Project House Rules (which cover children as well as money orders). These were revised in April 2014 (see Annex 5) and the group is content to endorse theses rules and to adopt them as representing a sensible, clear and helpful structure for all court orders in the family court.
79. The body of standard orders, once adopted, will have the status of forms within Part 5 of the FPR 2010. It is important to note, therefore, that by virtue of FPR, rule 5.1(2) a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case. The circumstances when a variation is acceptable are undoubtedly numerous and departure from the standard form will not prevent an order being valid and binding; but the standard forms should represent the starting point, and usually the finishing point of the drafting exercise. As the use of these orders becomes part of everyday practice their form and wording will no doubt become increasingly common place and familiar to judges and practitioners.
80. Within this overall structure, and starting from the drafts already published for consultation by Mostyn J’s team, the group has sought to complete the task of creating a comprehensive body of standard form money orders, taking into account consultation responses and the practical experience of the existing drafts.
81. The group accordingly recommends the formal adoption of the following standard orders:
(a) Financial Remedies Directions Omnibus – Shorter Version (see Annex 6);
(b) Financial Remedies Directions Omnibus – Longer Version with index (see Annex 7);
(c) Financial Remedies Final Orders Omnibus with index (see Annex 8);
(d) Children Act Schedule 1 Final Orders Omnibus with index (see Annex 9);
(e) Wardrobe of Enforcement Orders (see Annex 10); and
(f) Wardrobe of Committal Orders (see Annex 11).
82. The shorter version of the directions omnibus has been designed to meet the need for an alternative (to the comprehensive longer version) which is short enough at 8 pages of A4 to be printed and amended in manuscript in the courtroom if required. The selection of orders is intended to represent those directions most commonly used in ordinary financial remedy cases. The longer version is intended to be comprehensive, but may be more suited to an electronic drafting process. There is, of course, nothing to prevent a paragraph from the longer version being imported into an order drafted using the shorter version.
83. The longer version of the directions omnibus and the two final orders omnibuses have been equipped with indexes which, when used electronically, will allow the user to click straight to the desired paragraph. This is intended to assist the electronic drafting process.
84. A number of those responding to the consultation process queried whether, in relation to mortgage payments and other household outgoings, the court had power to direct one party to make such payments and/or indemnify the other against non-payment. Such obligations have traditionally been included as undertakings, but their inclusion as directions in the draft standard orders implied that the court had such powers when undertakings were not offered. Mostyn J has expressed the following view in justification of this inclusion:-
“Under the new s31E(1)(a) MFPA 1984 in any proceedings in the family court, the court may make any order which could be made by the High Court if the proceedings were in the High Court. The High Court has power to order or decree an indemnity. This is an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by theSupreme Court of Judicature Act 1873. It was the very relief initially ordered inSalomon v A Salomon and Co Ltd AC 22(but which was later set aside by the House of Lords as offending the rule about the separate legal personality of companies). As to mortgage and other outgoings in my view the power to order A to make payment to B plainly includes the power to order A to make payments on behalf of B. The greater includes the lesser. It was necessary to spell out the power to order the payment of mortgage and other outgoings in Part IV FLA 1996 proceedings (see s40(1)(a)) because the wider direct power does not exist in those proceedings. It would be anomalous if the power to order payment of outgoings only existed in Part 4 but not FR proceedings. It is necessary in my view for the court to have these powers if only to cover the position if someone is not prepared to give the necessary undertakings or is not participating in the proceedings.”
ARBITRATION IN FAMILY PROCEEDINGS
85. The recent development of specialist arbitration facilities targeted to financial remedy litigation demands procedural changes designed to ensure the adoption of arbitral awards in the family court in a way which is as swift and uncomplicated as possible.
86. Arbitration, whether under the IFLA scheme or otherwise is available to resolve all forms of financial disputes justiciable in the Family Court or Family Division. Therefore such schemes are capable of resolving disputes under:
a.Part 2 of the MCA 1973 (or the civil partnership equivalent)
b.The Married Women’s Property Act 1882, s.17 (or the civil partnership equivalent)
c.The Inheritance (Provision for Family and Dependants) Act 1975;
d.The Matrimonial and Family Proceedings Act 1984, s.12 (or the civil partnership equivalent)
e.The Children Act 1989, Sched.1
f.The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)
87. In S v S  EWHC 7 (Fam), sub nom S v S (Financial Remedies: Arbitral Award)  1 FLR 1257 the President made a number of observations in relation to an application for a consent order to reflect the provisions of an arbitral award. The decision spells out what should be the approach of the court when considering an arbitral award in the light of the requirements of section 25 of the Matrimonial Causes Act 1973: see in particular para  of the report.
88. CPR Part 62 (and its accompanying PD 62) governs procedure in relation to "arbitration claims" made in arbitration proceedings under the Arbitration Act 1996. "Arbitration claims" here are a term of art and are defined by CPR rule 62.2(1) as meaning:
a. any application to the court under the 1996 Act;
b. a claim to determine –
i.whether there is a valid arbitration agreement;
ii.whether an arbitration tribunal is properly constituted; or what matters have been submitted to arbitration in accordance with an arbitration agreement;
c. a claim to declare that an award by an arbitral tribunal is not binding on a party; and
d.any other application affecting –
i. arbitration proceedings (whether started or not); or
ii. an arbitration agreement.
89. The path presently prescribed by a combination of section 105 of the Arbitration Act 1996, the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996 (S.I. 1996/3215), as amended ('the 1996 Order''), and CPR rule 62.3 and PD 62 para 2 will result in an Arbitration Claim Form N8 (Appendix A to PD62) coming before a tribunal wholly unused to family business (but very likely well versed in arbitration law and practice).
90. The operative provisions of para 2 of the PD so far as applicable to the subject-matter of family disputes are that the Form N8 'may be issued at the courts set out in column 1 of the table below and will be entered in the list set out against that court in column 2'.
|Admiralty and Commercial Registry, London||Commercial list|
|Technology and Construction Court, London||TCC list|
|District Registry of the High Court (where Mercantile Court established)||Mercantile list|
|District Registry of the High Court (where arbitration claim form marked 'Technology and Construction Court' in top right hand corner)||TCC list|
91. However, a transfer to a more suitable court is envisaged by the 1996 Order, para 6, which reads:
'Nothing in this Order shall prevent the judge in charge of the commercial list (within the meaning of section 62(3) of the Senior Courts Act 1981) from transferring proceedings under the Act to another list, court or Division of the High Court to which he has power to transfer proceedings and, where such an order is made, the proceedings may be taken in that list, court or Division as the case may be.'It is to be noted that transfer can only be made another list, court or Division of the High Court; a transfer to the Family Court is not permitted.
92. Section 105 of the Arbitration Act 1996 permits the Lord Chancellor to specify by order the "court" for the purposes of the Act. However section 105 has not been amended to allow the Family Court to be specified. Only the High Court or the County Court may be specified.
93. Therefore the group recommends that para 2 of PD 62 is amended to add the High Court, Family Division to the list.
94. The group further recommends that a Family Division equivalent of Form N8 be devised and promulgated.
95. The group further recommends that the President promulgates the Guidance set out in Annex 12 to this report.