The Revised Standard Family Court Orders – In with the New
Published: 18/05/2023 04:37
The standard orders project has a long history. The then President (Sir James Munby) first appointed a drafting group in 2013 under the leadership of Mostyn J to produce a comprehensive set of orders that it was intended would become mandatory in the Family Court and the Family Division. Such orders were required, said the President, because ‘[i]nordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised’.1
The group’s work began with the creation of the Family Orders Project House Rules (which covered children as well as finance orders) published by the President in August 2013. These were then revised in April 2014.
It was initially intended that the orders would be finalised and introduced for the new Family Court on 22 April 2014. However, as the President noted in his 12th View from the President’s Chambers: The process of reform: Next steps (July 2014)  Fam Law 978, ‘this is complex work which cannot be rushed’ and that ‘this important work has not been put on hold indefinitely’ but there had ‘merely been a necessary slowing of the tempo’ and that ‘implementation will be staged’.2
At the same time the President invited Mostyn J and Cobb J to chair a new Financial Remedies Working Group (FRWG) which he tasked inter alia (in his 12th View) to ‘create a comprehensive body of standard form orders’ for use in financial remedy cases. This task represented the continuation of the work already undertaken by the team led by Mostyn J. The FRWG produced an interim report on 31 July 2014 in which it: (1) endorsed and adopted the April 2014 revision of the House Rules ‘as representing a sensible, clear and helpful structure for all court orders in the family court’; and (2) recommended the adoption of a range of ‘Omnibus’ and ‘Wardrobe’ standard orders3 which were annexed to the report. The FRWG then published a final report (dated 15 December 2014) on 26 January 2015 in which, having considered the responses on this subject, maintained its recommendations.
The full standard financial and enforcement orders drafted by a team led by Mostyn J were eventually issued on 30 November 2017 with the approval of the President.4 The standard children orders were likewise first issued on 6 June 2018 again which the approval of the President.5
As Sir James Munby observed in his Guidance of 30 November 2017:
‘Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised … We are no longer living in the world of the fountain pen and biro (which even today still account for far too much drafting of orders) any more than in the world of the quill pen. My ambition, therefore, 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.’
In January 2018, Class Legal published the Standard Family Orders Handbook: Volume 1 – Financial and Enforcement by HHJ Edward Hess. The Standard Family Orders Handbook: Volume 2 – Children and Other Orders by HHJ Edward Hess, HHJ Martin Dancey and Edward Devereux KC was published in July 2018. Second editions of both handbooks were published in December 2020 and August 2021, respectively. Class Legal expects to bring out third editions during the course of this year.
There were some amendments (including corrections of errors and ambiguities), revisions, and additions in subsequent years but the standard family orders (SFOs) remained largely unchanged and became almost universally used.
In his President’s Memorandum: Drafting Orders dated 10 November 2021, Sir Andrew McFarlane P stated:
7. When drafting orders, whether by consent or following a hearing, the standard order templates should be used, adapted as appropriate to the facts of the case: Practice Guidance: Standard Financial and Enforcement Orders (30 November 2017); Practice Guidance: Standard Children and other Orders (6 June 2018).
8. However, these templates only provide standard clauses for agreements and orders disposing of the case together with rules about formatting. They say nothing about the content of the recitals. This is the area where great controversy seems to arise.’
This led the President to say the following about recitals: (1) where the order follows a hearing its terms (including its recitals) must reflect the result of the hearing, no more and no less (and that the purpose of a recital is not to summarise what happened at a hearing, but rather to record those essential background matters which are not part of the body of the order and that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the order); (2) the practice of parties seeking to attribute views to the court which did not form part of the court’s decision must cease; and (3) the practice of a party’s representative seeking to record that party’s position before, or during the course of, the hearing must also cease.
On 18 January 2022 Mostyn J announced a review of the SFOs. He highlighted the need for the orders to be kept up to date to reflect changes in substantive law and ongoing developments such as Brexit, the COVID-19 pandemic and increased electronic working methods. HHJ Hess was appointed to lead the review of the financial remedy orders and HHJ Kambiz Moradifar was appointed to lead the review of the children orders.
Mostyn J also invited practitioners, judges and other interested parties to provide comments on any relevant matters by 28 February 2022. A full list of all those who responded – including judges, barristers, solicitors and various organisations – is attached at Appendix A to the Advisory Notice in relation to the revised SFOs.
Peel J continued the review when he succeeded Mostyn J as judge-in-charge of the SFOs on 26 April 2022.
HHJ Hess worked with Nicholas Allen KC and Amy Kisser on the financial orders and HHJ Moradifar worked with Edward Bennett, Steven Howard, Nastassia Hylton and Alexander Laing on the children orders.
Melissa Chapman of Class Legal took on editorial, layout and formatting responsibility (as she had done with the original orders).
The revised SFOs were published by Peel J on 17 May 2023 with the approval of the President.
In the main the revised SFOs are a work of evolution rather than revolution. Many of the suggestions made by those who responded to the request for comments have been incorporated.
In part, revisions reflect changes in law, practice and procedure, such as: (1) incorporating the new terminology for divorces – conditional order and final order – consequent upon the coming into force of the Divorce, Dissolution and Separation Act 2020; (2) directions supporting the Statement on the Efficient Conduct of Financial Remedy Proceedings in the Financial Remedies Court Below High Court Judge Level; (3) directions relevant to remote/hybrid hearings, the guidance on electronic bundles, and private FDRs; and (4) the consequences of the United Kingdom having left the European Union.
Substantive amendments to the financial orders include:
- orders relating to the making of a pension sharing orders which now codify good practice (providing the option formally to provide that neither party shall apply for a final divorce order until 28 days after the making of the order, but that such application shall be made promptly thereafter) and also seek to act as a bulwark against mischief after the order has been made (requiring parties to cooperate with the timely implementation of the order and also providing the option in effect to injunct the pension holder from intentionally dealing with the pension subject to the order pending implementation);
- a greater steer for the instruction of single joint experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing;
- orders reflecting the provisions of the Domestic Abuse Act 2021, including prohibition against cross-examination, and the appointment of a Qualified Legal Representative;
- a permission to appeal directions order;
- orders incorporating the new required forms for cases involving committal applications.
Changes to the children orders include:
- an updated Deprivation of Liberty order, and an updated standalone Port Alert order;
- references to the new Planning Together for Children Course which has replaced the Separated Parents Information Programme;
- separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.
Anomalies in the original orders have (it is hoped) been resolved and there is now also greater internal consistency and clarity of phraseology.
It is also hoped that many (if not all) of the formatting issues – including frustrating changes of font and problems with auto-numbering when the orders are being amended – have now been resolved.
Thought was given to introducing with the revised SFOs a set of standard orders dealing with cryptocurrencies and related issues. The authors of the revised SFOs are aware of the detailed work that has been done in this area by inter alia Andrzej Bojarski of 36 Family, Helen Brander of Pump Court Chambers and Byron James of Expatriate Law. However, this is self-evidently a complex area. It is a technology which continues to evolve at speed, there is likely to need to be some investigation into what orders are being used in the commercial courts where crypto freezing orders are becoming more commonplace (there have been a number of decisions making freezing injunctions against persons unknown following ransomware attacks), and any such orders may also require input from third party crypto experts. The decision was therefore taken to not to produce such orders for the time being, but it is probably only a matter of time before such standard orders are introduced.
The revised SFOs have been accompanied with updated House Rules. As Sir James Munby observed in his Sixth View from the President’s Chambers: The process of reform: Latest developments (October 2013)  Fam Law 1260 when commenting on the original version of these Rules:
‘They are not rules which courts or practitioners will have to follow; their obligation will simply be to use the prescribed forms of order. The House Rules, akin to house style manuals used by publishers of books and newspapers, are merely internal instructions to Mostyn J’s team to ensure consistency in their drafting of the prescribed forms. They may seem tedious and pedantic but can I make two points:
(1) we need house rules, for internal use, to ensure consistency; and
(2) they are designed to shorten orders by removing unnecessary verbiage.’
With the agreement of the President Peel J has decided not to put the revised SFOs out for formal consultation (as was done with the original two sets of orders) but rather direct that they be used with immediate effect. This is because: (1) of the very extensive and well-responded to consultation exercise in the first quarter of 2022; (2) it is therefore thought (or at least hoped) that they address most if not all of the issues that were identified with their predecessors; and (3) where they may need ‘tweaking’ is most likely to become apparent by their repeated use in practice. Peel J has therefore said that a more limited review of the SFOs will be undertaken during 2024 once the orders are bedded in and practitioners and other users have experience of them in practice and provided feedback.
In his Guidance of 30 November 2017, Munby P also observed as follows:
‘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 [but] 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.
The digital revolution will enable us to carry through to completion this radical revision of court orders and how they are produced. Court orders will be standardised and digitised, with standard templates, self-populating boxes and drop-down menus designed to ease and shorten the process of drafting and then producing the order. Given the marvels of modern IT, why should we not be able to hand every litigant in all but the most complex cases a sealed order before they leave the courtroom?’
It is a frustration shared by all that more than 5 years later the court modernisation programme has still not reached the stage where the above aspiration can yet be realised.6 However, as and when the IT allows it remains the intention of Peel J and the authors of the revised SFOs that they will be able to be used in this way.
As with the previous versions of the SFOs they do not have the status of ‘forms’ under FPR Part 5. Their use is, however, very strongly encouraged. As Sir James Munby observed in his Guidance of 6 June 2018, ‘[t]he standard orders should however represent the starting point, and, I would hope and expect, usually the finishing point, of the drafting exercise’. However, a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case and departure from the standard form does not, of course, prevent an order being valid and binding.