A Jarndyced View

“These are not orders. They are dickensian novels of withering irrelevance”. This wins the prize for the best description of the blandly named CAP02 Lite (I shall spare the blushes of the author of such withering twittering and call her Dickensia). Although, I do think it’s a bit hard on Dickens, who would no doubt be writing Bleak House II – The Return of Jarndyce were he still with us.

No, these CAP forms are not proving popular with the lawyers, who have worked out that, rather than making life easier for LiPs (or even for judges), procedural reform has just jumped the shark and we are dealing with a well intentioned procedural brainwave that in fact has an effect which is the precise and perverse opposite of its original purpose.

It is a miracle of managementitis that something intended to save time, stress, paper and money can in all four respects be an upwards driver of wastage.

They take forever to draft.

They are impossible to navigate.

The reader cannot see the important bits in amongst the dross.

They are at best several pages long.

They make me want to type #headdesk instead of N/A under 19 out of every 20 headings.

My favourite part of CAP02Lite though, is the bit about warning and penal notices. Perhaps in an attempt to eradicate the uncertainty arising from the probable absence of anyone with a legal qualification being available to cast an eye over the order to check it is actually a good fit with the law, and to avoid the time that would be wasted by letting the LiP balls it up themselves, the template orders just drafts in as standard the wrong law. Now that is genius time saving – just skip the whole fig leaf of justice bit and move straight to the unenforceable order. Diet law. Justice LITE.

To be clear, there are two problems with the CAP02Lite penal / warning notices. Although they are an improvement on version 1 (which was considerably more LITE on enforceability as it had no penal / warning notice at all). Firstly, the person drafting the penal notice seems to have failed to notice Pa 15 of Schedule 2 to the Children & Families Act 2014 which amends s11I CA 1989 to provide for a warning notice to be attached to all child arrangements orders, not just contact style child arrangements orders. So any “living with” order drafted in the current template will be potentially unenforceable when Parliament has specifically legislated to amend the primary legislation to remove the distinction between contact and residence, and to make “residence” type orders enforceable.

Secondly, the penal notice does not comply with FPR 37 as recently amended because it is not on the front of the order.

I am also rather fond of the charming “improvement” to the bit about anonymity so that rather than the previous draft, which contained a reference to the entirely wrong paragraph, the wording has now been amended to refer to the correct paragraph but so that it inadvertently (I assume inadvertently in light of the transparency reforms) imposes a ban on the naming of any guardian or any legal representative who must be named in the same paragraph. Thanks, but I’m not quite sure that’s warranted. In fact, I may be in contempt just by naming myself….Just as well I have given Dickensia a pseudonym.

Of course, this is only CAP02.2. No doubt there will be a bug fix soon and we can all go back to being seamless and timeous (and insofar as lawyers in private law are concerned wholly unnecessary)….

Of course, these amusant drafting errors might be a secret squirrel backhanded attempt by a kindly draftsman to assist the legal profession by creating them a whole new niche area of satellite litigation in respect of the enforcement of s8 orders where there are deficient penal notices – to help ease us into retirement as private law work dries up through the miracle of mediation with just a dash of stakeholder despair – but the truth is less tinfoil hatty : it’s just human error no doubt arising from pressure of time and work, and the law of unintended consequences in operation. Seamless? I think I see a tiny crack in the dam myself…

And so. Lawyers and judges are now consigned to spending hours typing “N/A”, correcting warning and penal notices, inserting the full postal address of the local CAFCASS Office… with the ultimate result of a reduction in goodwill on the part of the legal profession, an increase in incoherent orders that contain a lot of words but miss out the single important bit (no prizes or crystal marks from the plain english campaign I suspect), an 50% increase in terms of court resources applied to FHDRAs resulting from increased time estimates, longer delays to listing (as fewer cases can be put through the grinder in one sitting), and no doubt an increase in the legal aid spent (in those cases where there is any) as a result of more cases tipping into unit 2 than would otherwise be the case.

Oh, and the other brilliant bit about these orders is that they massively increase the scope for litigants in person to end up in dispute over email with the opposing advocate inevitably required to draft them because the judge has not had time to go through and spelt out the precise wording to be set out under each of the headings. I’ve seen one of those this week alone.

Happy days.

13 thoughts on “A Jarndyced View

  1. Glass half empty? These template orders may not be perfect, but the things you’ve pointed out can easily be remedied. Who have you contacted to point out the errors? The reason they were brought in was that the legal profession was making such ad-hoc and improvised orders that the whole situation was a complete mess. What’s needed is a better electronic template where sections of the order can be included, rather than excluded by N/A. A type of menu where you choose from what’s available and add it to your plate, rather than having to push the unwanted items to the side, but leave them there for the waiter to scowl at.
    Did anyone spot what’s missing from these template orders? No? The contact arrangements! I would suggest they all have the following items to consider:

    Contact Schedule
    Is the regular contact shedule defined?
    Are the times written into the order?
    Is the date set for the schedule to start?
    Are the arrangements for bank holidays and Teacher Training days defined
    If “half the holidays” how are the holidays divided? (1st week/2nd week, 1-2-2-1 for summer holidays)
    How do you decide who has the children the first week of holidays? Is it the one whose weekend it was at the start?
    Who should hold the passports and who is responsible for keeping them valid?
    How and when will passports be handed over from one parent to the other?
    What are the arrangements for Christmas or other religious festivals?
    Is there provision for arrangments to be changed if both parties agree to the change?
    Is there an “Any other contact agreed between the parties” clause to allow for additional contact?
    Are there arrangements for making up any lost contact?
    Do the arrangements for making up lost contact have a simple default such as one lost weekend is made up on the next weekend?
    Where are handovers to take place? E.g. school or nursery pickup/dropoff, childminders, one, other or both parents house, grandparents, public place with CCTV, Contact Centre.
    Who should be involved in handovers?
    What are the alternative handover arrangments as backup? E.g. what happens outside of school term time? If the normal person can’t do handovers who should do it instead?
    Is it necessary to define who the child lives with? If it won’t benefit the child the No Order principle should apply.
    Has the child’s residence been agreed?
    Is there a phrase such as “child will continue to live with the [parent] who will make child available for contact as follows”? This orders residency by the back door and should not be accepted if this was not agreed. Other wording such as “Father to collect child from his/her home” rather than “Father to collect child from Mother’s home” can have the same effect.
    How will the child be known? This may be necessary if there’s been an attempt to change the child’s name without permission.
    Is liberty to restore required? If there is a history of breaches or the situation is likely to change this will make it easier to return to court as necessary.

    When the parties have though about and agreed these things it’s much less likely to return to court over an ambiguity.

    • Brian,
      For sure they are easily remedied. But to date they have been tweaked rather than fixed and this blog post is an expression of irritation with that. The reason that they were amended was the result of noise from practitioners and judges about how difficult to work they were, and about errors and omissions. It will improve I’m sure – both because the forms are re-tweaked and because we get quicker at messing with them – but at the moment it’s a big old waste of time and making us all a bit narky. What you describe sounds nice, but it probably isn’t workable with the current resources – by which I mean both IT and personnel.
      The trouble with your suggestion is that in asking the parents their position on all four hundred points you identify you run the risk of increasing your list of issues from two or three to a dozen! Ooh, we’d never thought of that as an issue, but now you come to mention it, we’ll fall out over it!

      • The parents are in court because they can’t agree out of court. If they don’t consider all the issues then they’ll be back. You’ll have yet another of those long protracted series of litigation which ends up damaging the children.

        The parents will end up bitter and entrenched, the children damaged, but look on the bright side, the legal profession will have made a mint and that’s all that matters eh?

        • Brian – well yes but in my experience there is a balance to be struck. You are right that issues that are obviously / likely to arise in future should be tackled to avoid repeat applications – but there is a danger that if the court attempts to micromanage EVERYTHING this creates more issues than there are and creates a sort of dependency on the parents to expect the court to resolve every dispute, rather than working at sorting out difficult issues themselves where possible. Although I don’t agree with the insinuation in much government policy that all family disputes are capable of sorting out outside the court arena over a cup of tea, I do think that underneath all that bluster there is a fair point – namely the need to re-emphasise the responsibility of parents to work through issues like grown ups rather than running to tell to the court at the first sign of an awkward conversation.
          So, as a lawyer I often canvass issues that have not specifically been raised and try and incorporate them in the order, but it is also important to avoid creating disputes or distractions where the main issue is capable of resolution by agreement. As a rule of thumb its wise to include stuff that is likely to come up in the short to medium term, but not everything that could possibly come up.
          The legal profession aren’t making a mint because we aren’t doing much of this work any more! Not sure who is making a mint from it actually, apart from maybe the McKenzies?

          • These are what usually avoid disputes:

            Provision for arrangments to be changed if both parties agree to the change?
            An “Any other contact agreed between the parties” clause to allow for additional contact?
            Arrangements for making up any lost contact?

            These things keep people out of court. They are not in the draft orders.

          • Yes – although such provision is not actually necessary as parents are always free to change arrangements if they wish, it is sensible to spell it out as they often feel they have to stick to the letter of the order even if they both agree some variation or other.

            It’s a bit more difficult to make provision for making up contact as this in itself can cause complications and disputes with parents trying to sort out who “owes” who a weekend etc. Simplicity is preferable where possible.

  2. Advice to family lawyers:

    Don’t let litigants in person balls up the order. Do it yourself.

    • Hmm. I think I meant to amend that and select a rather more…erm…ladylike expression. Oops. True though – I struggle with them, no reason to think mere mortals will find it any easier.

  3. Interesting, thank you.

    But…hmmmm….this business about the warning notice confuses me. Granted, Pa 15 of Schedule 2 to the Children & Families Act 2014 amends s11I CA 1989 and provides for a warning notice to be attached to all child arrangements orders, not just contact style child arrangements orders…but s.7 of the Children and Families Act 2014 (Transitional Provisions) Order 2014 excludes ‘living with’ orders from the enforcement provisions.

    So a warning notice has to be attached to all CAOs but has no effect on ‘living with’ orders??

    • Bill,
      Ah. The Transitional Provisions apply to orders in force before 22 April. The CMOs are used to make orders after 22 April, to which the transitional provisions do not apply. That provision is intended, I assume, to ensure that there will be no problems with retrospectivity – i.e. when those orders were made it would not have been punishable to have breached a “residence” type provision, and so it would not be fair to apply this punishment to anyone breaching an old order (and in any event their warning notice would be ineffective as to residence). It won’t be a problem if an order is made or varied after 22 April.
      So, the warning notice has to be attached to all CAOs and DOES have an effect on living with orders as long as made after 22 April.

  4. The indentation on the replies seems to want to stifle discussion, so I’ll reply to this:

    “It’s a bit more difficult to make provision for making up contact as this in itself can cause complications and disputes with parents trying to sort out who “owes” who a weekend etc. Simplicity is preferable where possible.”

    comment here instead of in the proper place. The standard is alternate weekends and an overnight midweek, so provisions would go something like this:

    “If the child(ren) cannot have contact one weekend, then contact will occur the following weekend, unless by agreement in writing.
    If the child(ren) cannot have contact on their normal midweek day it will occur the on the following day of the next week, unless by agreement in writing”

    Nobody can argue. If the non-resident (or non-lived with) parent can’t make that, the contact is lost.

    Both parents now have a very clear definition of what will happen if they don’t agree something else. Both of them will want to change arrangements at some point. Either they co-operate with each other or they’re stuck with the order.

    • Brian, I’m not arguing with you. That provision is often very sensible, but for me the key is that a bit of judgment is required. In some cases such provisions encourage inflexibility on the part of parents which can actually drive not quel dispute. In particular in cases where there are step siblings who are also visiting other parents on alternate weekends it can be a nightmare to re-sync arrangements, or for parents with odd shift patterns such simplicity is impractical (NHS workers or police officers for example). One family’s clear and simple rules will be another’s straightjacket.

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