The purpose of a recital in an order may be, amongst other things, to record the parties’ non-binding expression of intent. Recitals are often used to cover issues that the court could not otherwise order, e.g. “neither party should denigrate the other”. A recital is different to a direction being recorded in the body of the order. When recorded in the body of the order the direction forms part of the order and as such, is enforceable by the court.
Recitals in many family law orders are crucial for reaching an agreed way forward on a range of matters. Some critics may say that recitals are used to record the redundant and blindingly obvious. However nuanced recitals are an important tool that many lawyers use in order to break through an impasse.
As demonstrated by the below case study, when agreeing an order, it is important to recognise when it is suitable to record an agreement in a recital or the body of the order as this can have very important consequences for your client.
The parents were married for twenty-four years and had two children (‘B’ and ‘C’). B suffered from a genetic condition and required twenty-four-hour care. The family home was adapted to meet B’s needs. B’s life expectancy was limited and at the time of the final hearing their condition was deteriorating. The husband was a solicitor and worked for a firm on a consultancy basis. The wife was a teaching assistant. The parties owned two properties, the family home and an investment property. The husband had savings and the wife had a pension.
At the final hearing, the husband agreed to move out of the family home and the judgment provided that (i) the wife should continue to receive nominal child maintenance, (ii) the husband should receive thirty per cent of the wife’s pension, (iii) the capital assets should be divided two-thirds/one-third split in favour of the wife, (iv) the investment property would be transferred to the husband and (v) the husband could keep his savings.
The arrangements for both children were agreed. The wife asked for discretion in respect of C’s contact and a period of transition in case C did not want to attend contact. The judge agreed that a “firmly worded order” would become another battleground for the parents and subsequently declined to make an order in respect of C’s contact. A recital to the order stated that C’s contact would be left to the parties’ discretion.
The husband applied for permission to appeal. At the time of the hearing, he had not seen C for four months. Amongst other grounds, he argued that the judge was wrong not to order the child arrangements for C as agreed between the parties. The husband did not challenge the structure of the arrangements for C. The basis of his appeal was that he did not have an opportunity to make submissions about the form of the order and whether the arrangements should appear as a recital or within the body of the order. This ground of appeal was found to have some prospect of success as there was no apparent way to enforce the recital stipulating contact with C and permission to appeal was granted.
President’s Guidance: Forms of Orders in Children Cases was issued by Sir Andrew McFarlane, President of the Family Division, on 17 June 2019. The guidance stated that recitals in the first order and last order in any child case (public or private law) should be treated differently to recitals in any interim orders:
Paragraph 9, “the first order made in any child case (public or private law) should comply with the previous Practice Guidance or PD12B, para 14.13, so that the key information in each case is recorded there. For subsequent orders (other than final orders) the court, while following the previous Practice Guidance, should tailor the order to the particular circumstances of the case, without the need to include lengthy narrative material which does not relate to the requirements of the particular order. The minimum required content in an order following a second or subsequent interim hearing will be:
- a recital of who attended and their representation;
- a recital of the issues determined at the hearing;
- a record of any agreement or concession made during the hearing;
- a recital of the issues that remain outstanding; and
- the text of any orders that were made.
It is expected that this approach will enable the court to limit the content of orders to what is strictly required for effective case management.
Following a final hearing, the court order should, as has always been the case, set out in full the orders that the court has made, together with any appropriate recitals”.
As stated above, the first order should comply with PD12B para 14.13 as follows:
“Order (other than a final order) – Where no final agreement is reached, and the court is required to give case management directions, the following shall be included on the order:
- the date, time and venue of the next hearing;
- whether the author of any section 7 report is required to attend the hearing, in order to give oral evidence. A direction for the Cafcass officer or WFPO to attend court will not be made without first considering the reason why attendance is necessary, and upon what issues the Cafcass officer or WFPO will be providing evidence;
- such other matters as may be included in President’s guidance from time to time.”