private | The Custody Minefield

A few days ago I shared an update that the President of the Family Court has announced the production of draft family law orders better suited to Litigants-in-Person (parents who represent themselves in court). The intentions are positive and include better consistency across the court service and wording aimed at the non-technical.

Hopefully the new judicial templates will cut down on some of the poor practice we see, including filing dates being left off directions, and warning notices being omitted (despite their inclusion being a statutory requirement).

The President, in his announcement, seeks to address the resistance which exists to change, which included complaints that previous draft court orders issued in early 2014 were apparently too difficult for some to use. Others complained that the standard drafts were too long. As mentioned above, trusting people to include the right wording in orders is fine in theory, but in practice this resulted in mistakes being made and omissions. To help ease in the change, the President has also had prepared a tick list of potential order wording which allows a judge/court staff to quickly select the wording they wish included in the order.

The President’s announcement does miss something though. It’s not uncommon for McKenzie Friends to be asked to draft court orders. Where the judge regularly sees the McKenzie Friend in court, and is confident in their ability, this happens sometimes even when the other party is represented (yes, really!).

All well and good to make the draft order wording available within the court service, and widening publication to the Bar and Law Society, but what about McKenzie Friends?

This is where we step in. The draft order wording is now available within our Draft Court Orders section of our Family Law App. The ‘tick list’ wording can be downloaded as a PDF and is also available via the link picture below:

We have seen a number of cases recently where the courts are failing to follow rules in relation to case allocation. Some of the worst examples include:

leave to remove cases (where one parent seeks to remove the children abroad).
complex cases previously heard in senior courts ending up heard by magistrates who fail to examine case history prior to varying the existing orders (which came before them for enforcement).

In short, the wrong level of judge is hearing cases in breach of court rules and guidance. If your case is allocated to the wrong level of judge, ask for it to be moved to the right level by writing into the court. We suggest writing into the court where the application was made, and addressing your letter to the Designated Family Judge (DFJ) responsible for Gatekeeping and Case Allocation. If you can, take the letter into court, hand it into the court administration department and ask for a receipt to confirm delivery. After this, if matters continue to be heard at the wrong level, write a position statement including a request for the case to be transferred and deliver this to court two days before the next hearing. Raise the matter orally at the hearing and take a copy of that position statement and the letter sent to the DFJ into court with you.

Case outcomes can be put at risk when too junior a judge hears them. This is why the rules exist to ensure more complex cases are heard by more experienced judiciary. In this article, we remind people of how cases should be allocated and the rules which govern this. Please reference the guidance we cite when asking that the court move proceedings to the correct level of judge.

Continue reading Failures in Judicial Case Allocation and Gatekeeping