“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.