I have been prompted to write this article following a recent problem I had trying to agree what I thought were necessary and reasonable recitals in a public law order following an interim hearing where the central issue was the mother’s contact.
THE PRESIDENT’S GUIDANCE
The following is a summary only of President’s Memorandum dated 10 November 2021 in which the President refers to his speech to the FLBA on 16th October 2021 and for ease of reference I will use the same paragraph numbers.
- With reference in paragraph 1 the President refers to the problems drafting orders and his previous Guidance: Forms of Orders in Children Cases (17 June 2019) and refers to his proposal that the first order made in any children’s case should contain the key information but that subsequent orders should be in short form omitting lengthy narrative material and containing recitals stating only which party attended and their representation; the issues determined at the hearing; any agreement or concession (my emphasis) made during the hearing; and the issues that remain outstanding. (again my emphasis)
- In the field of public law a comparable problem has been addressed by the issue of amended orders 18 April 2021 which should have had the effect of substantially shortening orders made in that sphere with the result that time will have been saved and contention reduced.
- Refers to the field of private law.
- The President did not consider that the Family Court needs a Practice Direction (but does not rule out this possibility if his principles are not observed and non-compliance continues).
- Referring in paragraph 7 to the need to use, adapted as necessary, the standard order templates the President comments that these templates say nothing about the contents of recitals. (my emphasis) which he then deals with as follows in paragraphs 9-12:
- The first and most basic rule is that where the order follows a hearing its terms (including its recitals) must reflect the result of the hearing, no more, no less.
- The purpose of a recital is not to summarise what happened at the hearing, but rather to record those essential background matters which are not part of the body of the order.
- In his Guidance of 17 June 2019 the President says that in an ideal world the aim was to encapsulate all of the essential information about the children’s case in the most recent order so that anyone taking up a case would only need to turn to the latest order to understand the issues, the parties, the state of the proceedings and other key information.
- However, that process has led to delay, expense and confrontation, which has continued not withstanding the use of short form orders. Therefore, while it remains necessary in children’s cases, both domestic and those with an international element, to record the essential background methods, it is essential that this is done as shortly and as neutrally as possible and that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the order. This is the first area of potential conflict.
- Relates to financial remedy orders.
- The President refers to a second area of potential conflict being the practice of parties seeking to attribute views to the court which did not form part of the court’s decision making it clear that this “surprisingly prevalent practice” must cease.
This was not an issue in my particular case.
- The third area of potential conflict referred to by the President is the practice of a party’s representative seeking to record that party’s position before, or during, the course of the hearing, commenting that this can give rise to much conflict, but is wholly superfluous, and again making it clear that this must cease.
This was also not an issue in my case for two reasons; firstly I was only seeking a recital to reflect what the local authority, the paternal grandparents and the child’s solicitor had said in court (none of which was in dispute) and secondly I was not seeking to put forward a partisan position on behalf of the mother as was subsequently suggested by Counsel for the local authority.
The proceedings involve care proceedings which are still ongoing.
I was representing the mother who is young and vulnerable.
The mother had successfully undertaken a mother and baby placement and the local authority’s final care plan had been a transition back home with a supervision order for 12 months.
Unfortunately, the transition plan did not go well and the child had already been placed with the paternal grandparents, subject to an interim Child Arrangements Order and Interim Supervision Order, following positive, although as yet incomplete, assessments of them.
The paternal grandmother is now the child’s prime carer.
The grandparents have been made parties and share parental responsibility and are represented.
The father has parental responsibility and is also represented. He lives with the paternal grandparents but his unsupervised contact with the child is limited and subject to an agreement.
Relations between the mother and the paternal grandmother were initially very good and the mother was enjoying contact for three hours three times a week, including at the weekends, at the grandparents home, supervised by them, but was allowed to take the child out on her own for short periods subject to a written agreement.
This relationship broke down following allegations by the mother that the child has been harmed in grandmother’s care and the grandparents gave notice that they were no longer prepared to supervise the mother’s contact or assist with handover arrangements.
At the hearing the local authority confirmed that there were no immediate places available for contact to take place at a contact centre and said that the local authority had no objection to the mother having unsupervised contact with the child in the community three times a week for three hours.
The grandparents and the father opposed the mother having any unsupervised contact.
By the time of the hearing the mother had not had contact for nearly three weeks.
The Guardian was on leave and unavailable to give instructions at the hearing. The solicitor for the child confirmed that the Guardian was unaware of any recent issues with the mother’s contact and that the child was used to spending regular time with his mother and that it was important for this to continue.
The local authority agreed that the newly allocated social worker would need to meet with the family to discuss the mother’s allegations about the paternal family and discuss a plan for contact.
Counsel for the local authority drafted the CMO which included a total six recitals, one of which referred to the hearing from the parties legal representatives and another to the anticipated witnesses required for the final hearing.
The other four recitals referred to the paternal grandparents confirming that they were no longer able to supervise mother’s contact (but no reference to them no longer agreeing to assist with handovers); the need for the new social worker to meet with the family and convene an urgent meeting to discuss mother’s contact; police disclosure issues relating to the paternal grandfather and lastly the need to chase outstanding SGO medical checks on both paternal grandparents.
The draft CMO made no reference to either the local authority’s clearly expressed view in court that it did not object to the mother having unsupervised contact in the community nor the Guardian’s lack of awareness of any immediate concerns about mother’s contact.
I suggested an amendment to the recital relating to the paternal grandparents that they were also refusing to assist with handovers which was subsequently agreed.
I also suggested the following additional recital which was not agreed:
“AND UPON the local authority confirming that there are no immediate places available for contact to take place in a contact centre and recommending that the mother have unsupervised contact with X in the community three times a week for three hours; this being opposed by the father and the paternal grandparents on the basis of the negative assessments filed to date and inviting a meeting with the social worker before any contact arrangements are considered and noting the existence of an ISO”.
The solicitor for the child also suggested the following additional recital:
“AND UPON the Child’s Guardian who is currently on leave being unaware of the update on the issues relating to contact recently, it being the position though that X has always spent time with his mother regularly and it being important for that to continue”.
Counsel for the local authority objected to my proposed additional recital for “not being in line with the President’s guidance on “limiting the amount of recitals, keeping them neutral, and not summarising positions at court/what happened at court or including ‘partisan statements’” and kindly referred me to paragraphs 9-12 of the President’s Guidance as a gentle reminder!
I responded by saying I thought my amendments/additional recitals were both reasonable and necessary to provide a proper balance to the order and to reflect what had been said by the local authority in court, which was not disputed, in relation the central issue, namely mother’s contact, or rather the lack of it.
Needless to say the father and paternal grandparents agreed with the local authority.
The solicitor for the child withdrew her suggested amendment preferring to also agree with the local authority.
I declined to engage in any further ongoing email exchanges and suggested the judge be invited to decide.
The decision was to accept the local authority’s position and to reject my amendments.
I make no further comment on the decision but am left with an uneasy sense of uncertainty about what exactly is the purpose of recitals if they do not properly reflect what was said and or agreed during the course of a hearing, interim or otherwise.
I was in a minority in this this particular case but, having spoken to others, may not be alone in my understanding or, as it seems, misunderstanding, of the purpose of recitals in any public law interim order.