The 18th View from the President’s Chambers “The on-going process of reform – Financial Remedies Courts”

Last month, Sir James Munby published his 18th View from the President’s Chambers. “The on-going process of reform – Financial Remedies Courts” expands upon the 17th View (“divorce and money – where are we and where are we going?” [2017] Fam Law 607) and the “President’s Circular: Financial Remedies Courts” [2018] Fam Law 91.

The basic premise of these various dispatches is simple: amidst all the reform within family law, finance has largely been untouched (that said, they each implicitly recognise one change even if it is purely taxonomic: AR is dead, long live financial remedies). Taking the Law Commission’s 2014 report, “Matrimonial Property, Needs and Agreements” Law Com No 343 as its basic cue, the President is clear: we need a remedy. In the 18th View, he sets out his vision.

As a premise, the President continues to endorse money as a speciality and the benefits of a national system of Financial Remedies Courts. In effect, a national rolling out of the Financial Remedies Unit at the CFC. Indeed, as the President recognises, it has been HHJ O’Dwyer and HHJ Edward Hess (alongside Joanna Miles) who have repeatedly argued the case for reform (See Hess and Miles, ‘The recognition of money work as a speciality in the family courts by the creation of a national network of Financial Remedies Units’ [2016] Fam Law 1335, and O’Dwyer, Hess and Miles, ‘Financial Remedies Courts’ [2017] Fam Law 625).

As to why, one answer is simple and well recognised or, at least suspected. Outcomes have long seemed to vary with geography. Indeed, there was once a time when a provincial application was purposefully issued in the Principal Registry to increase the likelihood of a joint lives order.  In any event, the (more or less) largely supported but abstract need for change now has some specifics.

The President envisions the appointment of a “cadre of specialist judges” to the Financial Remedies Court (FRC). As in Children Act cases, there will be a “process of early allocation of a case to the right judge at the right level at the right place.” He seeks the application and enforcement of standard directions and wants FDRs to be conducted with “consistency, with sufficient time being allowed not only for the hearing but also for judicial preparation”. There is to be an improved programme of training, an increase in reporting judgments in small and medium cases and sufficient time for judicial reading. This focus on the judiciary, the cadre, perhaps overstates the importance of the bench prior to Final Hearing when there are two able practitioners but can only be of benefit. An increased reporting of low asset cases is certainly welcome. An increase in transparency can only be a good thing and the fact it is a “goal” should be an embarrassment to us all.

In sum, the President sets out the basic concept of the FRC, echoing the regionalised models of the Family Court and Court of Protection, as follows:

– The FRC will be part of the Family Court and deal with all types of financial remedies cases, including, in time, under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). (Aside: which means, for practitioners, confirmation of TOLATA as a “family” specialism).
– There will be regional hubs, typically two per circuit.
– There will be a lead judge for each hub area: this must be a judge (either a Circuit Judge or a District Judge) with real experience/expertise in financial remedy work.
– There will be a national lead judge with a deputy. The first lead judge is Mostyn J and, as his deputy, HHJ Hess.
– Hearings will be conducted (a) at the regional hub and also (b) at a number of Financial Remedies Hearing Centres (FRHCs) within the hub area. Parties will still be able to request, for good reason, that a   particular hearing takes place at a court other than a FRHC.
– Only ‘ticketed’ judges will sit in the FRC. All District Judges and Circuit Judges currently in post who do this work, and wish to continue to do so, will be ‘grandfathered’ in.
– The FRC will function quite separately from the Regional Divorce Centres. Applications for a financial remedy, including for ancillary relief, will be issued at the FRC hub, not at the Regional Divorce Centre.
– The FRC is to be piloted as of this month and next in London, the West Midlands and South-East Wales with more pilots to follow after Easter across the circuits. There is a revised Form A due any time now and a revised Form E is to be expected. At last, divorce itself and “money” are to be entirely “de-linked”: to be started and pursued by completely separate processes. That said, it is proposed that the question in the petition relating to financial claims is to remain. For practitioners, all glitches in the new standard orders are said to have been ironed out.

And the net effect? It is easy to be cynical (and there is a reason for that) but only a fool would deny that there are daily frustrations, failings and a need for improvements. The President describes financial remedies as the “Cinderella of family justice.” Plainly, this is no longer the case. Expect change. Plus ca change?