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High Court endorses joint drafting of family court consent orders

The High Court has given the green light to lawyers and others to act for both parties in drafting consensual family court documents. Today's judgment in JK v MK [2020] EWFC 2 takes account of the use of modern technologies and expectations of the public in family law services.

Following a referral by a Regional Divorce Centre and an investigation by the Queen's Proctor, Mr. Justice Mostyn made a declaration that amicable, an online supplier of family law services, had no conflict of interest when jointly drafting consent orders, nor was the organisation in breach of the requirement that certain legal activities were undertaken by solicitors only.

The judgment held that there is no reason why joint drafting should not occur provided both that the work does not favour one party to the prejudice of the other and there are so-called red flags to highlight when a conflict may exist. It is thought that the judgment will be helpful in the not uncommon case where a couple simply seek help jointly to have a court order prepared to reflect the agreement reached between them. 

Online service providers such as amicable now have judicial confirmation that their drafting of family court orders, significantly using computer-based auto-populated processes, is not work which by law can only be undertaken by solicitors.  As the judge pointed out, this work will very soon be conducted by artificial intelligence.

The International Family Law Group LLP represented amicable pro bono.  The firm says that it is keen to improve access to justice, the opportunity for more people to be able to use affordable online services and to encourage digital innovations. 

David Hodson of iFLG said:

"Family law must continually change and innovate with the demands of the public and different ways of working.  Having reached an agreement, it is so frustrating for a couple then to be told they must each instruct a separate lawyer to draft the court order of that agreement.  Many can't afford it.  Most don't want to do so.  I believe this judgment and its wider consequences will bring about a change in professional practice for the benefit of the public.  Some will use online services like amicable.  Some will jointly instruct lawyers.  Soon the process will be entirely automated.  In this future, specialist lawyers will have a distinctive role in family law services."

For an analysis of the judgment by The International Family Law Group LLP, click here. For the judgment, click here.

20/1/20