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Practice Guidance: Standard children and other orders

The President of the Family Division, Sir James Munby, has issued Guidance promulgating standard children and other orders for general use.

The President notes that in March 2018 he issued for consultation the second batch of Standard Family Orders: [2018] Fam Law 371. This included, as Orders 7.2 and 8.2, lengthy precedents, running to 88 and 131 paragraphs respectively, of case management orders for private and public law cases.The objective was to capture virtually every scenario likely to arise, and as such they included some rare outliers.

The responses to the consultation identified some useful drafting and structural points, which have been taken into account in finalising the drafts, but the overwhelming majority of the responses complained at the length and, sometimes, the structure of Order 7.2 and, in particular, Order 8.2.

The purpose of Orders 7.2 and 8.2 was to provide a comprehensive menu from which the appropriate orders and directions could be easily selected and used in shorter form template orders. Orders 7.2 and 8.2 are now framed as libraries of precedents rather than order templates. They include, at the start, hyperlinked tables of contents to make selection easier. The idea is that clauses, selected from the relevant precedent library, are used to augment and/or modify the shorter form template orders referred to below.

The team has produced a number of shorter Public and Private Law Case Management Directions Orders (Orders 7.3-7.6 and 8.3-8.5 respectively) which seek to cover the situations most likely to arise. In concept, these mirror the idea of Order 1.2 – the shorter version of the Financial Directions Order. Alternatively, practitioners can by-pass the length of Orders 7.2 and 8.2 by use of commercial software. Just as with the earlier Financial Orders, the President anticipates that practitioners will swiftly build up a library of their own precedents for use in later cases.

Order 7.7 is a summary private law order for litigants in person, designed to give a simplified summary of the issues to be considered at the next hearing and what they must do to get ready for it. It may either be used as a free-standing order or as an attachment to a template order.

Some respondents to the consultation adverted to certain local practices whereby the order made by the court replicates in its entirety the case management order currently in use but with the unused paragraphs struck through rather than entirely removed. Such practices should cease. In future, orders as drawn and sealed by the court should contain only those paragraphs that apply, and there should be no sign, even if struck through, of unused text.

The orders do not have the strict status of forms within Part 5 of the FPR 2010 and their use, although very strongly to be encouraged, is not mandatory. Moreover, a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case. There will be many circumstances when a variation is required and departure from the standard form will not, of course, prevent an order being valid and binding. The standard orders should however represent the starting point, and, I would hope and expect, usually the finishing point, of the drafting exercise.

For the Guidance itself and a link to the zip file of orders, click here.