On Tuesday, 22 April 2014, family law in England and Wales has some of its biggest changes for decades. It represents a major and very necessary cultural shift. There is a unified family court across the country, combining the different levels of first instance judges with cases being transferred to the appropriate levels of judiciary and with greater judicial continuity. A number of significantly improved procedures are being introduced in both finance and children cases.
At the same time and, for me, of great significance in the long term internationally is the introduction of standardised court orders to be made by the unified family courts. At the moment these are mainly orders in financial cases, domestic protection and forced marriage. Further orders are being rolled out in the coming weeks and months for children cases and a variety of other family law situations.
These orders have judicial approval and many have been judicially drafted. Others have been prepared by leading practitioners working in conjunction with judges. They must be used by all practitioners. It will make drafting orders hugely easier and quicker and cheaper. It will produce a significantly higher quality to family court orders across the country.
They have a different style about them but we will get used to this and work with them.
Their importance must be seen in the context in 2014 of the present and future delivery of family law services for families. Legal practice cannot continue in its present form for many more years. The costs associated with the work, especially court based litigation, are increasingly only available to a few. There is an urgent need to assimilate many IT opportunities. Clients often put up with the way the professions work for want of an alternative. Many in the commercial realm used to dealing with commercial delivery of legal services are often the most critical of family law practice. The position in England is not too different to many other jurisdictions.
We must rationalise the work we do. It makes no sense for lawyers to be legal scribes, recognisable from Dickensian days, transcribing albeit electronically new draft court orders and documents each time, or at least charging clients to do so. It makes no sense for lawyers on behalf of clients to argue about particular drafting if the judiciary prefer one form. Standardisation of orders is fundamental and overdue
For those who argue that lawyers will be losing work, the simple answer is that the need for top-quality careful advice remains paramount with these standardised orders. Many clauses are in the alternatives and the lawyer has to decide, advise and select which is appropriate. Standardised orders do not cover every situation and the lawyer has to consider when to depart and why and with what alternative drafting. Good lawyers have nothing to fear from standardisation of orders and other court forms.
Judges often get a bad press. The stereotypical perception remains in some quarters of some being out of touch, fuddy-duddy, barely able to send an email and thoroughly disorganised. In fact in many jurisdictions they are leading the way to the dramatic changes in court services and litigation. Many are very IT alert, at least as much as many practitioners. They have the advantage that they are generally shepherded by more senior judges and are one combined corps, keenly aware of the need for reform. Across the private practice professions, those law firms and chambers which do seek to innovate often find themselves frustrated with the innate conservatism and resistance to major, wholesale change which too often reflects the legal profession as a whole.
With these standardised orders, we can then move forward the short step into standardised applications and forms. A flowchart of process and procedure follows quickly (and has just been produced for children applications). In so doing the public involved in family court proceedings can play a better part. The number of litigants in person is a feature in all jurisdictions now and will only increase. The more they can be helped in the way of standardised orders and forms then the less unnecessary time will be taken in the family justice system.
Of course the draft orders are not perfect. As we work with these orders, no doubt improvements will become obvious and will be made. My recommendation that we moved to the modern form of numbering e.g. 18.104.22.168 has sadly not been accepted and we have still numbering which defies any electronic system e.g. 23(3)(b)(iv). The use of roman numerals in 2014 retains an elitism knowledge of which the first century Gnostics would have been proud.
Standardisation has already started in the international arena. There are many examples. The EU has rightly pressed ahead with pro forma standardised applications and orders for recognition and enforcement of family court orders around the EU. I have argued that a working group should be created for standardised marital agreements of half a dozen different forms, representing the more usual arrangements, so that this was easily recognised internationally and so parties did not have to pay large costs in having agreements drafted afresh each time.
So the standardisation of orders in England from next Tuesday has all the portents of a huge step forward in the delivery of legal services for the second half of this decade. The opportunity should be seized for more standardisation, not less, and to move into the international arena even more.
Huge praise and congratulations for forging ahead with this excellent initiative must go to Sir James Munby, President of the Family Division of England and Wales, and to Mr Justice Mostyn for overseeing the project and its implementation.
Now if only the law itself could be simpler and easier to understand and implement…