18th View from the President: financial remedies: Cinderella is finally to go to the ball
13 March 2018 :: Jordans Family Law (Lexis Nexis)
In 2014 the Law Commission found evidence of significant differences in the way the law is applied in financial applications in divorce, both between individual judges and between different areas of the country. It also found evidence of legal advisers using such regional inconsistency strategically. Steps are now underway to address this.
In his December 2017 Circular published in January  Fam Law 91 (see also https://www.familylaw.co.uk/news_and_comment/president-s-circular-financial-remedies-courts#.Wndk6XzLiM8) the President of the Family Division, Sir James Munby, proposed to pilot a Financial Remedies Court (FRC). Now, in his ‘18th View from the President’s Chambers: the on-going process of reform – Financial Remedies Courts’ published in February  Fam Law 15 Sir James adds more detail to his vision for financial remedies, which he describes as “the Cinderella of family justice”, where little has been done and much needs to be done, as he says.
Financial Remedies Courts
The President says that he has supported for some time the introduction of a national system of Financial Remedies Courts (FRCs) as espoused by HHJ Martin O’Dwyer, HHJ Edward Hess and Joanna Miles, see Hess and Miles, ‘The recognition of money work as a speciality in the family courts by the creation of a national network of Financial Remedies Units’  Fam Law 1335 and O'Dwyer, Hess and Miles, ‘Financial Remedies Courts’  Fam Law 625. He comments that the overwhelming reaction has been positive.
The President sets out in his 18th View that the Financial Remedies Courts (FRC) will be based in regional hubs, staffed by specialist ‘ticketed’ judges. It will function separately from the existing divorce centres. There will be a process of very early allocation of a case “to the right judge at the right level at the right place” to ensure maximum efficiency. We are told that the information contained in the proposed revised Form A will enable the judicial gatekeeper at the regional hub to allocate as appropriate. This will be “bettered” by the application and enforcement of standard directions and interim orders. Of course, on 30 November 2017, the President issued his ‘Practice Guidance on Standard Financial and Enforcement Orders’ (see January  Fam Law 89 and https://www.familylaw.co.uk/news_and_comment/practice-guidance-standard-financial-and-enforcement-orders#.WndoeXzLiM8) in order to promote national consistency and to avoid ambiguities in the meaning of the wording of an order. Reading between the lines though, should we expect the FRC to take a more rigid approach to the court timetable and show less tolerance towards a non-compliant party?
FDRs are to be conducted with consistency, with sufficient time being allowed both for hearing and judicial preparation. Sufficient time will be allowed for the preparation and conduct of final hearings. This will certainly merit a cheer in the family law community but does this mean the end of the last minute court-ordained trial adjournment due to ‘lack of judicial time’?
Judicial training is to be improved. We are to see the reporting of judgments in small and medium cases, apparently. This is radical stuff. Are we to see such judgments reported in Family Law Reports? Will they be routinely circulated to all FRC judges for the purposes of improving consistency of judgments? One assumes that all this will be paid for by the over £1bn investment to reform and modernise the justice system.
The President has a laudable vision that an increase in transparency will result in greater predictability of outcome, a higher settlement rate and fewer appeals.
A bullet point guide
Helpfully, the President sets out a bullet point guide to the FRC, replicated 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 Sch 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.
The pilots, conducted in accordance with Practice Directions issued from time to time, are to run in London, the West Midlands (Black Country) and South-East Wales in February/March 2018. Further pilots will follow after Easter 2018 on a rolling programme, beginning with the remainder of the Midland Circuit, the North-Eastern Circuit and parts, at least, of the South-Eastern Circuit.
New Form A – or ANFO?
A new Form A, application for a financial order, together with amendments to the rules, and ultimately a revised Form E financial statement, are proposed.
This revised Form A, is entitled “Application Notice for a Financial Order”. Are we likely to see it referred to as an “ANFO” to distinguish it from the current Form A? It is designed for use with all types of financial remedy applications and is annexed to the President’s View. Along with rule amendments, it was due to go before the Family Procedure Rule Committee on 6 February 2018.
This annexed Form A would merit pagination. The first page carries helpful notes to the applicant about its purpose, which also deal with MIAM requirements and help with court fees. Due to the de-linking of financial remedies from divorce, page two requires details about the marriage or civil partnership and dissolution, including the identity of the relevant court, what orders may have been made, and when. Where the Form A application relates to an overseas dissolution, there is scope to apply for leave, to be accompanied by a statement in support.
As well as the orders we are used to seeing in the existing Form A, for the applicant and for children, there is a box to tick for others. These include applications to prevent or set aside a transaction intended to defeat a party’s financial relief claim, to freeze assets; but also others, namely to set aside a previous order, for a legal services costs allowance, or an order not included in those listed. Will this lead to an increase of such applications? Oddly, whilst there is a box for more information about four of these five types of order, there is none for the application for a legal services costs allowance.
The proposed Form A sensibly seeks details of pension schemes, if known, where an application for an order relating to pensions is being made. It also dispenses with the checklist and general information currently found at the back of the current Form A, running to two and a half pages, presumably because it is intended to be self-explanatory. It also dispenses with the many MIAM pages we are used to currently.
Usefully, Section 3, Part A, allows a draft consent order and D81 statement of financial information to be appended.
In September 2017, an MoJ consultation closed on full procedural de-linking of matrimonial and civil partnership proceedings from any financial remedy application arising from divorce or dissolution. The consultation also covered proposed amendments to Chapter 5 of Part 9 FPR to change the cases to which it applies and to name it as the “fast track procedure”.
Of course, in 2016, the Financial Remedies Working Group (FRWG) had been considering a draft FPR 2010, 9.9B to extend the accelerated (shortened) financial remedy procedure to cases involving any application for:
• an order for periodical payments;
• a lump sum order where the amount of the lump sum does not exceed £25,000;
• the variation of an order for periodical payments where the applicant does not seek the dismissal of the periodical payments order and its substitution with one or more of a lump sum order, property adjustment order of pensions sharing order. (See http://blogs.lexisnexis.co.uk/family/family-procedure-rule-committee-an-update/)
The proposed Form A actually refers to the FPR 2010, 9.9B, yet to be introduced, which would appear to relate to the same sort of orders the FRWG contemplated prior to the consultation. In addition, in relation to the fast-track procedure, there is scope to indicate where the application is made to the magistrates’ court and also where one does not want to adopt fast-track at all.
Suggested directions are invited. Hence there is scope to suggest a hearing by telephone or “another electronic means”. Could there be submissions by WhatsApp soon?
Finally in Section 3, there is space to set out an estimate of the assets and income values involved, along with any features which may make the case more complex, to allow the court to assess the size and complexity of the case.
A statement of truth rounds off the Form A.
De-linking of financial remedies from divorce will occur so that each of the two elements will be begun and proceed through completely separate processes. In responding to the MoJ’s consultation, I was concerned that, were financial claims to be removed from the petition entirely, parties, particularly litigants in person, needed to be aware of the implications that there may have been by leaving financial aspects unresolved, without a consent order dismissing potential claims.
This issue was considered by the Family Law Rule Committee in October 2017, as shown by its minutes: see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/670544/fprc-approved-mins-091017-for-publication.pdf
The President has now vowed to retain the financial question in the petition and insert a corresponding question in the acknowledgement of service. It is to be hoped that answering this question will be tantamount to making an application for a financial order, thus avoiding the “re-marriage trap” which is a cause of a good number of negligence cases.
Tony Roe Principal, Tony Roe Solicitors, Theale, Reading, Berkshire.