The Origins of the Financial Remedies Court – an Insider's View, Part 1

Published: 01/04/2022 06:41

The introduction of the Financial Remedies Court (FRC), which has just come of age, marks an important milestone in the development of the family justice system. The story of how this came about requires to be recorded before it all recedes into half-remembered history. An account from one who was involved in the gestation of the FRC, and who is proud to think that he was its midwife, perhaps has some added value.1 I leave it to others to say.

The immediate origins of the FRC are to be found in a fundamentally important paper written in the autumn of 2016 by HHJ Edward Hess and Joanna Miles, the well-known Fellow of Trinity College Cambridge and leading academic expert on the subject. But their paper has to be viewed in the context of the family justice reforms of 2013–2014 and, in particular, the arrival of the new family court.

The family court, which came into existence on 22 April 2014, was important for two quite distinct reasons. First, because it subsumed within one court all the family work previously conducted in the Family Division (subject to two classes of reserved cases), the County Court and the Family Proceedings Court. Secondly, and more significant for present purposes, because it was a single court wherever it sat, unlike the various county courts and the Family Proceedings Courts each of which had had a separate legal existence. This meant that, for the first time, it was possible to organise family justice on the basis of a single national system, capable, especially in terms of its administration, of being rationalised and, in due course, regionalised and even centralised.

A striking example of the way in which the system operated prior to 2014 was in relation to divorce and therefore ancillary relief. The effect of FPR 7.5(1) and s 33 of the Matrimonial and Family Proceedings Act 1984 was that a petition could be filed in any divorce county court (of which there were a very large number) irrespective of the address of either the petitioner or the respondent. This system, it might be thought, was neither sensible nor efficient. Moreover, as illustrated by the amazing case of Re 180 Irregular Divorces, Rapisarda v Colladon [2014] EWFC 35, [2015] 1 FLR 597, it facilitated abuse of the system for purposes of fraud.

There were many who, even in 2013, looked forward (in both senses of the expression) to the day when the implementation of modern IT would mean the introduction of the paperless court – where the issue of proceedings, the court file and the trial bundle would all be electronic. Rapid implementation of modern IT was, of course, at the heart of the ill-fated Court Modernisation Programme, introduced with such fanfares and high expectations in September 2016. So much for all the great hopes and ambitions. Court Modernisation has achieved far too little of what was envisaged. Future generations will, with every justification, condemn us for our failure. Significant failures and ongoing delays have proved a bitter disappointment to those who had hoped for so much.

One bright exception was the digital online divorce project which began as a pilot in 2017 and launched nationwide in 2018: [2017] Fam Law 273, [2018] Fam Law 649. After a very bumpy start in the pre-pilot phase – largely due to the absurd conditions under which those planning it were forced to operate: the so-called agile approach which was mandated for them was the very antithesis of sensible project management – online divorce has turned out to be a triumphant success.

In ‘Reform and the future of family justice: where is the court modernisation programme heading?’ [2018] Fam Law 1426, 1430, I referred to the online divorce project as ‘a triumphant success … which holds out the real and imminent prospect of transformation across the whole system’. I went on:

‘Now this, of course, is simply the public-facing side of the system. Work is progressing rapidly, and, as I can tell you (for I have been shown much that is not yet generally known), with great success, not merely to expand the existing digital processes so that they can be used by respondents as well as petitioners, so that can be used, for example, for civil partnerships and in cases of judicial separation and nullity, and so that they can be applied to financial remedy proceedings, but also so as to transform the “back office” processes. In particular, much impressive and innovative work has gone into devising systems – designed for use across the board; not just in divorce cases – to enable judges to deal with paper applications and “box-work”, online and without recourse to the paper file, whilst giving them full access, if they need it, to the entire electronic court file.’

This last point is fundamental, demonstrating that, with proper IT, box-work can be removed altogether from the physical setting of a particular court building and that the District Judges and other judges doing box-work can thus be utilised as a single national resource irrespective of where they happen to be.

But the reality in 2013 was that the family court had to be planned around the continuing existence of the traditional paper file. And it was this reality which determined what one might call the geography of the family court, as it was being planned in 2013. The detail was set out in The Single Family Court: a Joint Statement by the PFD and HMCTS, issued in April 2013, [2013] Fam Law 600. (For London the detail was set out in The Single Family Court in London: a Joint Statement by the PFD and HMCTS, also issued in April 2013, [2013] Fam Law 740. See also, View from the President’s Chambers: the process of reform: London [2013] Fam Law 1137.)

For present purposes what matters is that family court was planned by reference to the 40 or so areas for which a Designated Family Judge (DFJ) was responsible for judicial leadership and management. In each DFJ area there was to be (subject to local variations where circumstances required) one central location – the Designated Family Centre – where, so far as material for present purposes, the DFJ would be based and at which there would located (i) a ‘single point of entry’ for the issue of process for the entire DFJ area and (ii) a centralised and unified administration, including a centralised ‘back office’, for the entire DFJ area.

If much of the thinking and planning at this time necessarily focused on children cases, the need for reform in relation to divorce and ancillary relief was not overlooked. In In the President’s Court: 29 April 2014 [2014] Fam Law 820, the speech from the Bench I gave to mark the implementation of the family justice reforms and the coming into existence of the new Family Court on 22 April 2014, I remarked, in the course of a general tour d’horizon, that in relation to ancillary relief:

‘We need to reconsider practice and procedure so as to facilitate the use of out-of-court methods of resolving financial disputes, whether by mediation, arbitration or other appropriate techniques, at the same time further reforming the court processes in such cases to bring to bear all the techniques of judicial continuity and case management which have been so successful in children cases. Our aim, as with every aspect of the family justice system, must be to simplify and streamline the process so as to make it more user friendly for litigants in person and cheaper for all.’

I went on to muse about divorce:

‘Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground? Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce? Indeed,2 may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?’

I elaborated my thinking on this in my 13th View from the President’s Chambers: The process of reform: an update [2014] Fam Law 1259, 1260–1261, in the course of which I referred to two important initiatives.

One, which was to prove highly successful and influential, was my decision in June 2014 to ask Mostyn J and Cobb J to chair a new Financial Remedies Working Group to review matters of practice and procedure. Their task was two-fold: to explore ways of improving the accessibility of the system for litigants in person and to identify ways of further improving good practice in financial remedy cases: 12th View from the President’s Chamber: The process of reform: next steps [2014] Fam Law 978, 978–980. The FRWG reported with enviable speed and in impressive detail; its initial report was dated 31 July 2014 and the final report followed on 15 December 2014: [2014] Fam Law 1311, [2015] Fam Law 196.

The other, which unhappily turned out very much less well, was the introduction of Regional Divorce Centres (RDCs). As I explained in my 12th View [2014] Fam Law 978, 979, I wished to:

‘explore the feasibility of uncoupling the process of divorce from the process of adjudicating claims for financial remedies following divorce. With the recent repeal of section 41 of the Matrimonial Causes Act 1973, we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce. What I propose is a sensible next step. The majority of divorce petitions proceed without any financial claims. From the perspective of HMCTS it surely makes sense to have completely separate files for divorce petitions and for financial remedy claims. It will also facilitate the ongoing process, which I fully support, of reducing the number of court offices handling divorce petitions. Divorce, as a process, is in large measure administrative, albeit conducted judicially by District Judges and, for the future, also by Legal Advisers. It is a process which lends itself to handling in a few places and perhaps, eventually, in a single national processing centre.’

In my 13th View [2014] Family Law 1259, 1262, I announced that:

‘HMCTS is, with my active support, proceeding to centralise the handing of divorce petitions, concentrating this work in a limited number of locations where petitions will be issued and all special procedure divorces will be processed. Ultimately, it may be that the process could be centralised in a single national centre. These administrative changes – desirable in terms of streamlining the process, making more efficient use of resources and reducing administrative costs – can surely be facilitated and enhanced by the administrative uncoupling of the two processes.’

In Re 180 Irregular Divorces, para 99, I said:

‘The fraud in these cases was, I have no doubt, facilitated by rules which … enabled the architects of the fraud to spread the issue of 180 petitions very thinly across no fewer than 137 different county courts. For reasons unconnected with what this case has uncovered, that facility is shortly to be very drastically curtailed. [Having referred to my 13th View, I continued:] I anticipate that by this time next year there will be fewer than twenty, possibly as few as a dozen, places at which a divorce petition can be issued.’

In the event there were to be 11 RDC. The first, in the North East, opened in November 2014. The process was complete by October 2015, an important milestone having been reached in July 2015 with the transfer of all the work from London and the South East Circuit to the Bury St Edmunds RDC: see the illuminating materials published in [2015] Fam Law 870, 955, 958, 961.

The RDCs were not a success, as I explained in ‘Reform and the future of family justice: where is the court modernisation programme heading?’ [2018] Fam Law 1426, 1429:

‘The introduction of Regional Divorce Centres was, I emphasise, an interim solution pending the complete roll-out of the online divorce project. It was a solution which had my full and enthusiastic support. It was plainly the right thing to do. But it has been marred by the failure of HMCTS to provide adequate numbers of both administrative and judicial personnel, in particular at the largest of the RDCs, at Bury St Edmonds, which serves London and the whole of the South-East. Utterly predictably, and entirely justifiably, these failings have led to strong criticisms from the professions. The reputational damage to HMCTS has been severe.’3

An equally damning assessment by a solicitor, Lindsay Yateman, can be found in ‘Underfunding centres failing the divorce process’ [2018] Fam Law 1493.

My successor, Sir Andrew McFarlane P, said much the same in his Keynote address to the Resolution Conference on 5 April 2019, Living in Interesting Times:4

‘On any view the Regional Divorce Centres have not worked well, indeed, some, particularly Bury St. Edmunds, Liverpool and Bradford have provided a wholly unacceptable service.’

He repeated this in his View from the President’s Chambers on 7 May 2019, [2019] Fam Law 844:

‘I would again refer to my words to the Resolution Conference in which I fully acknowledged and apologised for the failure, despite the best efforts of the individual staff employed there, of the 11 Divorce Service Centres spread around the country to provide an adequate service for the progress of divorce petitions and the making of Financial Remedy consent orders. These centres are being phased out during the current 12-month period and replaced by an online system based in the new national Civil and Family Service Centre at Stoke on Trent. I am confident that the senior staff at HMCTS are entirely clear that the unacceptable service levels currently experienced from the paper-based centres is not to be repeated as Stoke gradually takes on more and more of this work.’

Meanwhile, and whatever the failings of the RDCs, the online divorce project was moving steadily forward. In his View from the President’s Chambers on 18 December 2019, [2020] Fam Law 162, 166, Sir Andrew was able to report:

‘Since the summer, litigants in person have been able to start and finish their entire divorce proceedings online and almost 80% of them are choosing the use the new system over the old paper route. Following a successful pilot, including over 100 firms, the divorce service has recently been opened to up publicly for all legal professionals to use.’5

Jumping ahead, with effect from 13 September 2021 all new applications for divorce were required to be made via the online portal, though this did not include applications for nullity, dissolution of civil partnership and judicial separation, still required to be filed at the Bury St Edmunds RDC.

As we can now better appreciate, the failings in the RDCs had a particularly deleterious effect on the handling of financial remedy cases, because I had allowed the RDCs to be set up without first insisting on the need to uncouple the processes of divorce and ancillary relief. This was a serious mistake. When first set up, if a contested financial application was made the entirety of the proceedings, divorce and financial, were transferred from the RDC to a local court, building in delay for court users and additional work for HMCTS.

In 2017, what was called ‘Administrative De-linking of Financial Remedy Applications from Divorce Proceedings’ was introduced, so that the main divorce proceedings could remain in the RDC with staff and judiciary at the local hearing centres working independently on the contested financial proceedings. However, this was itself only an unsatisfactory half-way house, for consent financial applications remained at the RDC: ‘Administrative de-linking of financial remedy applications from divorce proceedings’ [2017] Fam Law 585.6 Far too often there were wholly unacceptable delays in the processing by RDCs of even the simplest financial remedy consent orders. I return to this topic below.

So much for the general background. I must now sketch in what was happening in relation to financial remedies litigation:

  • In 2013 I had asked Mostyn J to be the judge in charge of the RCJ ‘money’ list. I chose him because of his intellectual skills, his enormous energy, and his enthusiasm for innovation. I was not to be disappointed. On 5 June 2014 he released, with my authority, a Statement on the Efficient Conduct of Financial Remedy Final Hearings Allocated to be heard by a High Court Judge whether sitting at the Royal Courts of Justice or elsewhere [2014] Fam Law 1031. A revised edition was released on 1 July 2015. The current edition is dated 1 February 2016 and can be found in At A Glance.
  • Also in 2013 I had asked Mostyn J to undertake what became known as the Family Orders Project. As I explained in my 4th View from the President’s Chambers: The process of reform: an update [2013] Fam Law 973, 977:
  • ‘Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised. I have appointed a small drafting group under the determined leadership of Mostyn J to provide us with a comprehensive set of orders the use of which will in due course become mandatory in the Family Court and the Family Division. Work has begun and is well advanced … As part of this work, Mostyn J has formulated a set of “House Rules” … which are to apply to every order. They are not yet in final form and are published for comment and discussion. We shall welcome and value your views.’

    It is no reflection on Mostyn J and his team that in the event this project took much longer to come to fruition than either he or I would have hoped. As I observed in my 12th View [2014] Fam Law 978, 983:

    ‘The family orders project continues under the leadership of Mostyn J. I remain convinced of the necessity of producing a comprehensive set of forms of order for use in the Family Division and the Family Court, though conscious in the light of recent events that this is complex work which cannot be rushed. I repeat what I have said before, that this important work has not been put on hold indefinitely. There has merely been a necessary slowing of the tempo. Implementation will be staged. Recent experiences demonstrate that in the long run this project is critically dependent upon the availability of proper up-to-date IT in the courts. FamilyMan, the system with which HMCTS continues to have to struggle, has long been obsolescent and is now obsolete. It will be some time before an adequate replacement for FamilyMan is available. In the meantime District Judge Geoff Edwards has agreed to update his invaluable templates, which have long been appreciated by so many judges, to provide an interim solution for some of the most immediately pressing problems. In the medium and long term, however, something more radical is surely required.’

  • With effect from 2 January 2014 financial remedy cases at First Avenue House – then the home of the Principal Registry of the Family Division but shortly to become the Central Family Court – started to be heard by the newly-established specialist Financial Remedies Unit co-ordinated by HHJ Martin O’Dwyer and, as he then was, DJ Edward Hess: see, for the details of this innovative scheme, HHJ Martin O’Dwyer and DJ Edward Hess, The Financial Remedies Unit at the Central Family Court [2014] Fam Law 344, Pilot Scheme for an Accelerated First Appointment Procedure in Financial Remedy Proceedings in the Financial Remedies Unit at the Central Family Court [2014] Fam Law 887, and Guidance Note: Financial Remedies Unit at the Central Family Court [2015] Fam Law 964.
  • On 22 April 2014 I issued President’s Guidance: Financial Proceedings, cases to be allocated to a judge of the High Court [2014] Fam Law 1033.
  • In my 12th View [2014] Fam Law 978, 981, I explained:
  • ‘In its February 2014 report, Matrimonial Property, Needs and Agreements, the Law Commission recommended (paras 3.75–3.120) that authoritative guidance on “needs” be produced by the Family Justice Council. The Commission recommended (para 3.89) that “the guidance prepared by the Family Justice Council be addressed primarily to the courts, but … it should be produced additionally in a plain English format and made widely available to the public” … I am entirely supportive of the Commission’s recommendations in this respect and seek their early implementation. I have asked Roberts J to chair a Family Justice Council Working Group tasked with carrying this project forward in consultation, I very much hope, with Advicenow.’

    Roberts J and her team produced an exemplary document Family Justice Guidance on Financial Needs in Divorce in two versions, one for the professions and the judiciary and the other for litigants in person, in June 2016: [2016] Fam Law 1056. A second edition was published in April 2018: [2018] Fam Law 769.

  • In June 2014, as we have seen, I asked Mostyn J and Cobb J to chair the Financial Remedies Working Group, which reported on 31 July 2014 and 15 December 2014.
  • On 30 November 2017, the family orders project came to fruition when I issued Practice Guidance: Standard financial and enforcement orders [2018] Fam Law 89. As I said in the Guidance:
  • ‘My ambition … is that the standardised orders should be available to everyone electronically. The use of standard orders produced at the press of a button will obviate the need for drafts from counsel and solicitors scribbled out in the corridor. It should assist greatly in reducing the time judges and court staff spend approving and completing orders. And the existence of a body of standardised and judicially approved forms of order will go a long way to assisting judges and others – mediators for example – faced with the increasing number of litigants in person who cannot be expected to draft their own orders.’

    Tempering ambition with painful reality, I continued:

    ‘In the long run, this project is critically dependent upon the availability of modern, up-to-date, IT in the courts. At present, the full use of standardised orders is still impeded by the inadequate state of the IT available to judges and courts. FamilyMan, the system with which HMCTS continues to have to struggle, has long been obsolescent and is now obsolete. Although it may, I fear, still be some time before an adequate replacement for FamilyMan is available, the steady implementation of the ongoing court modernisation programme gives real cause for optimism that we will fairly soon be seeing real changes in our IT as the digital court of the future becomes a reality.’

    In January 2018, Class Publishing, the publishers of At A Glance, published the Standard Family Orders Handbook: Volume 1 – Financial and Enforcement by HHJ Edward Hess.

  • On 28 February 2018 I issued President’s Guidance: Jurisdiction of the Family Court: Allocation of Cases Within the Family Court to High Court Judge Level and Transfer of Cases from the Family Court to the High Court: The Family Court Practice 2019, para 5.382. An amended version (the amendments helpfully shown in red) was issued on 24 May 2021, [2021] Fam Law 901.
  • In July 2019 the comprehensive Guide to the Treatment of Pensions on Divorce was published by the Pension Advisory Group co-chaired by Francis J and HHJ Hess: [2020] Fam Law 166. As the President justly observed in his View from the President’s Chambers on 18 December 2019 [2020] Fam Law 162, ‘The guide should be on the desk or laptop of every financial remedy judge and lawyer. Its aim is to tease out, demystify and describe all aspects relating to pensions which may figure in a financial remedy dispute. It is written in plain accessible narrative and should do much to improve our practice in this area.’

Meanwhile, what of the FRC?

For me the story of the FRC began with an email out of the blue on 26 September 2016 from Edward Hess and Jo Miles, attaching an unsolicited article which they had written and asking rather diffidently what I thought: ‘We would be interested to hear your views on these suggestions … No doubt you will (politely) tell us if you think the idea a non-starter!’ My immediate response, in an email on 1 October 2016, was an enthusiastic call for its immediate publication: ‘This is a VERY interesting idea which enthuses me considerably. Can I suggest that you get it published in Family Law?’

So, it was published in the November 2016 issue of Family Law: Hess and Miles, The recognition of money work as a specialty in the family courts by the creation of a national network of Financial Remedies Units [2016] Fam Law 1335. It was an incisive and powerfully compelling account of what was wrong, of why we needed specialist financial remedy courts (what the authors referred to as Financial Remedy Units), and – this was perhaps its greatest importance – of the necessary solutions. It needs reading in full. Here I merely draw attention to two important points. Hess and Miles highlighted the ‘curious’ fact that, whereas no Circuit Judge or District Judge could hear a children case unless they had the appropriate ‘ticket’, there was no such requirement in relation to financial remedies work – with the consequence that such cases could be and often were heard by judges (including Deputy District Judges) who had little or sometimes no experience of or expertise in what they were trying, a ‘system’ hardly productive of either efficiency or, more especially, consistency of approach. Their other invaluable contribution was an analysis, based on such data as was available, suggesting that 12 FRUs might be needed. Whether or not this figure was correct – in the event, as we shall see, we have ended up with 18 – it indicated that the necessary structure, the proposed ‘network’ of FRUs, would not fit comfortably within the 40 or so existing DFJ areas and that a separate structure would therefore be necessary.

In a Note dated 4 October 2016 which accompanied the article ([2016] Fam Law 1340) I said that ‘Their analysis is compelling and their proposals attractive … I suspect that many will agree the pressing need for change. Our present arrangements are probably untenable.’

Having reflected on these ideas, and favouring taking steps straight away to begin to create a national network of what I preferred to call Financial Remedies Courts, I asked Edward Hess and Joanna Miles, together with Martin O’Dwyer, to put forward a more detailed plan as to how the ideas in the original article could be implemented. Rising magnificently to the challenge, the results were published in the June 2017 issue of Family Law: O’Dwyer, Hess and Miles Financial Remedy Courts [2017] Fam Law 625. Again, this impressive piece requires to be read in full.

In the same June 2017 issue of Family Law I published my 17th View from the President’s Chambers: divorce and money – where are we and where are we going [2017] Fam Law 607. I commented that:

‘The concentration of divorce cases in a limited number of regional divorce centres, as the prelude to a completely on-line system, is putting the administration of ancillary relief under unnecessary and avoidable strains.’

I went on:

‘there is an urgent need to begin implementing, initially by way of pilots followed by more general roll-out, the exciting plans for specialist Financial Remedies Courts first suggested by HHJ Edward Hess and Joanna Miles … and now impressively elaborated by HHJ Martin O’Dwyer, HHJ Edward Hess and Joanna Miles in their more detailed blueprint … The case they present is, in my view, unanswerable. Unsurprisingly, and surely appropriately, it builds on the thinking underlying the geographical re-organisation of the Family Court in the run-up to its formal birth in April 2014, to the judicial leadership and management structures put in place for money cases, both in the Central Family Court and the Family Division, and to the judicial leadership and management structures more recently put in place when the Court of Protection was regionalised. Early implementation of pilot Financial Remedies Courts must be a priority.’

I added:

‘Work must proceed for the initial roll-out, as soon as sensibly possible in late 2017 or very early 2018, of the first pilot specialist Financial Remedies Courts.’

On 1 December 2017 I issued President’s Circular: Financial Remedies Courts [2018] Fam Law 91 setting out my proposal to pilot the FRC concept in three places, starting, I hoped, in February 2018: London, the West Midlands and South-East Wales. I envisaged that further pilots would follow quite shortly on a rolling programme. Identifying three critical issues relating to the location of the proposed FRC hubs, the locations of the proposed FRHCs (see below) and the selection of the lead judge for each FRC hub, I added: ‘In relation to the three pilots, local discussions on these matters are under way. Thought is also being given to where and when the next wave of pilots should begin.’

On 23 January 2018 I published my 18th View from the President’s Chambers: the ongoing process of reform – Financial Remedies Courts [2018] Fam Law 156 setting out my definitive plans for the structure, implementation and piloting of the FRC.

I set out my ambition:

‘My core ambition for financial remedy work is to improve significantly both the application of procedural justice and the delivery of substantive justice.

Procedural justice will be bettered by the appointment of a cadre of specialist judges to the Financial Remedies Court (FRC) and by a process of early allocation of a case to the right judge at the right level at the right place, so as to ensure maximum efficiency. It will be bettered by the application and enforcement of standard directions and interim orders and by ensuring that FDRs (where the majority of cases settle already) are conducted with consistency, with sufficient time being allowed not only for the hearing but also for judicial preparation.

The delivery of substantive justice will be improved by an improved programme of judicial training; by the reporting of judgments in small and medium cases by the judges of the FRC to promote transparency and consistency; and by ensuring that sufficient time is allowed for the preparation and conduct of final hearings. An increase in transparency will result in increased predictability of outcome, which in turn should lead to a higher rate of settlement or, for those cases that do not settle, a reduced rate of appeals.’

I set out the structure:

‘The basic concept of the FRC, which builds on both the Family Court and regionalised Court of Protection models, is as follows:

  • The FRC, which will be part of the Family Court, will deal with all types of financial remedy cases dealt with in the Family Court or Family Division: claims for ancillary and other relief under the Matrimonial Causes Act 1973; claims under Schedule 1 to the Children Act 1989; claims under Part III of the Matrimonial and Family Proceedings Act 1984; and, in due course, claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
  • There will be a number of regional hubs, typically two per circuit (population or geography may require more), at which both the administration (HMCTS) and the judicial leadership for the relevant hub area are based.
  • There will be a lead judge for each hub area: this must be a judge (either a Circuit Judge or a District Judge) with real experience/expertise in financial remedy work.
  • There will be a national lead judge with a deputy. Mostyn J and, as his deputy, HHJ Hess have agreed to fill these important positions.
  • Hearings will be conducted (a) at the regional hub and also (b) at a number of Financial Remedies Hearing Centres (FRHCs) within the hub area. I emphasise (b), because it is very important. I emphasise also that parties will still be able to request, for good reason, that a particular hearing takes place at a court other than a FRHC.
  • Only “ticketed” judges will sit in the FRC. All District Judges and Circuit Judge currently in post who do this work, and wish to continue to do so, will be “grandfathered” in.
  • The FRC will function quite separately from the Regional Divorce Centres. Applications for a financial remedy, including for ancillary relief, will be issued at the FRC hub, not at the Regional Divorce Centre.

The FRC will initially function with paper files, as at present, but HMCTS, with my support, is already working on transition by the FRC as quickly as possible to a fully digitised model.’

I draw attention to my thinking in relation to lead judges. My view was then, and remains, that there should be two national lead judges: one a Family Division judge, who should be the same person as the judge in charge of the RCJ ‘money’ list, and a deputy who should be a Circuit Judge (or District Judge) with real experience of financial remedies work outside the RCJ. In relation to the lead judge of the regional hub I attached, and continue to attach, great importance to the appointment of the person most suitable for that important role, whether a Circuit Judge or a District Judge and without any preference for the appointment of a Circuit Judge.

In relation to the pilots I said this:

‘As previously announced, and following discussions with HMCTS, the FRC will be piloted in three areas, starting in February or March 2018: London, the West Midlands (Black Country) and South-East Wales. Further pilots will follow after Easter 2018 on a rolling programme, starting with the remainder of the Midland Circuit, the North-Eastern Circuit and at least parts of the South-Eastern Circuit. The pilots will be designed to enable us to move as quickly and smoothly as possible to implementation, first in the pilot areas and then nationally, of the full FRC model as described above … As with the piloting in 2013 of the new Public Law Outline, the pilots will be continuously monitored, so that the FRC model can be “tweaked” from time to time in the light of emerging experience … The attached Table shows my current, tentative, thinking in relation to the possible “geography” of the pilot areas. None of this, I emphasise, is yet set in stone. And, as the pilots proceed, the initial “geography” will be adjusted as appropriate. Local discussions, involving HMCTS, the leadership judges and, especially, the District Judges, with their particular knowledge and experience of financial remedies litigation “on the ground”, are needed to ensure appropriate consensus before the pilots commence; consensus both in relation to the “geography” and generally.’

The Table listed 10 proposed hubs, identifying, in relation to each, the locations of the proposed hub court and FRHCs: London (hub at CFC), Midland Circuit (hubs at Birmingham and Nottingham), South-East Wales (hub at Newport), North-Eastern Circuit (hubs at Newcastle, Leeds, Sheffield), and South-Eastern Circuit (hubs at Chelmsford, in the Thames Valley, and a third somewhere in Kent, Sussex and Kent).

In the event, this carefully thought through plan for a rolling programme of pilots was not to be. Forces beyond my control demanded an interruption, with the consequence that the only pilot able to proceed, in April 2018, was that in the West Midlands: Financial Remedy Centre Pilot: HMCTS guidance [2018] Fam Law 517. The essential obstacle, although, as we will see, there were others, was concern as to whether my plans in relation to the FRHCs were too radical and involved an inappropriate reduction in the number of such courts. Whether that of itself necessitated the delay in rolling out the pilots, not least given what I thought were the very clear assurances I had given that none of this was set in stone and that, as the pilots proceeded, the initial ‘geography’ would be adjusted as appropriate following local discussions, involving both HMCTS and the local judges, is a matter for others to decide. My own view, then and now, was that this delay was neither necessary nor appropriate; indeed, that it was unnecessary and most unfortunate.

On 27 July 2018, in an attempt to breathe new life into the process and to meet the objections to what I had originally proposed, I published a further announcement: President’s Circular [2018] Fam Law 1201. It turned out to be my last official act as President.

‘Following the successful initiation of the Financial Remedies Court project in the West Midlands (part), centred at Birmingham, I am pleased to announce a further roll-out of the pilot, albeit for the time being in modified form. With effect from dates in the near future, to be agreed in each case between the relevant FRC lead judge and HMCTS (nationally and locally), the pilot, in this modified form, will be extended to: (a) East Midlands, centred at Nottingham, (b) the whole of the West Midlands (including but not limited to the part in the initial pilot), (c) Cheshire and Merseyside, centred at Liverpool (the extension of the pilot to Cheshire and Merseyside will enable the locally developed financial remedy protocol to be placed on a more formal footing and enhanced), (d) North-east (1), centred at Sheffield, (e) North-east (2), centred at Leeds, (f) North-east (3), centred at Newcastle, (g) London, centred at the CFC, (h) South-east Wales, centred at Newport, and (i) South-west Wales, centred at Swansea.’

I added that the precise dates and sequence had yet to be determined, but the first were likely to be (a), (g) and (h). I went on to emphasise:

‘For the time being, these further extensions will not involve the creation of any specified designated hearing centres and judges hearing financial remedy cases will not be expected to sit elsewhere than where they currently do. Cases will continue to be heard, as at present, in the premises currently used by the Family Court.’

That, as matters turned out, marked the end of the concept that there should be a limited number of FRHCs designated as such. The term itself is no longer used. And more to the point the number of courts where the FRC now sits is much greater than I had originally contemplated. In the Table attached to my 18th View, I had listed 10 proposed hubs with a total of 45 proposed FRHCs. In the Table attached to the revised Financial Remedies Courts: Overall Structure of the Financial Remedies Courts and the Role and Function of the Lead Judge dated 11 January 2022 (see below), the same 10 hubs now have no fewer than 73 courts in addition to the hub courts. That apart, what has emerged from the process is, in all its fundamentals, what I had originally planned, though what I had originally called ‘hub areas’ are now more helpfully referred to as ‘FRC Zones’, each of which with a ‘Zone Hub’.

In my announcement I also said this:

‘For the time being, Forms A and applications for consent orders will continue to be processed in the regional divorce centres. The reason for this is that work is being undertaken by HMCTS to enable these applications to be issued and processed online. This work is well-advanced. I am satisfied that it would be wasteful to initiate a new, different, manual process for these applications when they are likely to be replaced by an online process in the reasonably near future.’

Despite the care with which, as I thought, I had framed this announcement, and the enthusiasm with which it was received by most, its publication drew a negative response from the naysayers. By then, I was no longer President and the future of the FRC project was in the hands of my successor, Sir Andrew McFarlane P. There was, of course, no need for concern for, following my retirement, the FRC project continued with his enthusiastic and unwavering support.

©2023 Class Legal
Class Legal

Share this

    Most read