Template Orders – the drafting lawyer’s friend

Vincent Albanese on Flickr (Creative Commons - thanks)

No, I haven't lost the plot. I'm being sarcastic.

As Suesspicious Minds has recently pointed out there is a consultation about NEW, IMPROVED template orders. It's only open until 16 April. So speak now or forever hold your peace, people. The consultation and 'suite' of draft orders is here. Go and take a look.

The first (surmountable) irritation is the use of not only red ink, but also GREEN ink to highlight fields for completion by the draftsperson. The use of red to highlight these will mean of course that we will forever be accidentally typing green, thereby getting all our orders sent straight to the 'special' folder in the court inbox that never gets read. Obviously the answer is to save an amended copy on your hard drive where you have used Ctrl+A and changed all the text colour to black....but I flag this because it feels symptomatic of something that has been put together by someone very diligent but who doesn't have to draft these wretched things day in and day out. It is focussed on the end product not the process of getting to the end product.

Since Andrew at Suesspicious Minds has looked at the CMO for public law cases (and I agree with everything he says there, much of which applies to the orders generally), I thought I would look at the private law children general directions order first (order 7.2). Here goes. I'm not going to go through everything because that would be inhumane, but I'll just draw out some things that jumped out at me as I scrolled the 20 pages of multi-coloured delight.

Fortunately, we are a long way from the early days of templates when some judges insisted that all paragraph numbering must be untampered with and deleted paragraphs should be struck through rather than removed in order to preserve that numbering - so finished orders will not in most cases be anything like 20 pages long, as only relevant paragraphs will be included. But its how you get from 20 encyclopaedic pages to an individualised, finalised order that is the issue.

First up, there are now even more 'who's who' type fields to be completed on the first page - so much so that the penal notice has slipped on to page 2 of the order, which it seems to me is not a fantastic idea from an enforcement point of view.

In addition to the existing stuff in the old CAP 2 form, there is now a whole load of stuff about jurisdiction and participation directions and an expanded section about domestic abuse (plus much, much more further down some of which I've NEVER had to include in an order). Now, in many of these cases there will be at least one litigant in person expected to find and absorb the important decisions, jobs to do and deadlines in the order. If they aren't given clear instructions by page 2 and instead are confronted with some guff about 'Article 20 of Council Regulation (EC) No 2201/2013 (Brussels II Revised) and/or under Article 11 of the Hague Convention on the Protection of Children 1996' or something about how 'the court has decided not to make participation directions because...' they will go off an make a cup of tea and never get to page six where the important deadline is hidden. I promise you they will turn up at the next hearing having failed to do something important, and they will say - with some force - that they didn't know what was expected. Litigants in person (litigants full stop) will nod along and if asked five minutes after the hearing what was just said will look blankly back at you. Clear orders are really critical for people who don't have lawyers to write and remind them of deadlines.

Stuff about jurisdiction, and detailed special case management directions really ought in my view to be either separately recorded in a schedule or ancillary order or left to the end of the document. What litigants in person really need is a document that says :

You must follow the instructions in this order. If you don't the consequences may be... (I'd put in a warning notice / penal notice AND I'd say the hearing may be ineffective and there may be costs consequences)

The next hearing will be on DATE at TIME at LOCATION. You must arrive at court by TIME. 

The hearing will be to decide X and will last X hours / days. The court will / won't / may hear evidence.

Before the next hearing you JANE DOE must do the following :

Send a statement to the court and the other party Mr BLOGS by 4pm on DATE

Send a letter from your GP to the court and the other party Mr BLOGS by 4pm on DATE

Before the next hearing you JOHN BLOGS must do the following : 

Send a statement to the court and the other party Ms DOE by 4pm on DATE

Prepare written questions for the court to ask JANE DOE on your behalf at the next hearing

Before the next hearing CAFCASS must prepare a report about where the children will live and they must send it to Mr BLOGS and Ms DOE by 4pm on DATE.

If for any reason you can't do what you are required to do in this order or can't attend a hearing you must write to the court and the other parties explaining why, when you will be able to do what is required and providing supporting evidence, for example medical evidence.

And that's IT. Preferably all on one page. Just as the court demands a position statement or a statement of evidence in not more than 2 sides of A4 we should aim to do the same for the parties. A case management order's main function is as a set of instructions to the parties. Recording the parties' concessions or positions is also important - but legal technicalities should not be allowed to distract from the functionality for the parties.

As Suesspicious Minds says there are some really useful chunks of standard wording in the draft orders that will be helpful in cases that involve that particular issue. But those familiar with the process of drawing up an order will be grimacing at a 20 page template, and groaning at the idea that this will be time saving. Especially when the bit you need in EVERY order - a child arrangements order - is at page 8 of 20 and paragraph number 41! WHY? Why is it at paragraph 41? After you've waded through intervenors, guardians, s34 recovery orders, permission to apply, DWP orders.... DELETE scroll DELETE scroll DELETE scroll SWEAR UNDELETE....

Locating the right paragraphs to lift and paste into a fresh document will be as much of a headache as locating the redundant ones to delete them. If the previous templates are anything to go by the moment you try and delete a paragraph or add a paragraph something bonkers happens to the numbering and formatting and half the text shoots off the page as a result of some ginormous unwelcome indent. And every paragraph is numbered 12.

What would be useful is an unnumbered template document without fancy formatting, numbering or multi-coloured 'helpful' text and brackets. With a clickable index on the front page so one can navigate to the paragraph about jurisdiction in a jiffy to grab it and run.

That and a bare bones template order with the top and tail and essential paragraphs only. Names, warnings and penal notices, next hearing etc.

(there, see - I can use coloured text to emphasise something too. Annoying isn't it?)

Back to the order... (I got distracted). Of interest in terms of wording is this :

[Name] must make sure that the child[ren] spend[s] time or otherwise [has] / [have] contact with [name].

Notwithstanding authorities reminding us how useless the favourite wording of 'make available' is, I observe that 'make available' is a hardy little blighter that has so far refused to die a death. We shall see...

There are now some standard provisions for handover, which will be fine and dandy when all handovers are uniform, but possibly a bit irksome when arrangements are more variable / complex. I also don't think I like this paragraph much:

communication between the parties about contact and the presence of parties will not of themselves amount to a breach of the injunction order dated [date] made in case number [case no.] and a copy of this order shall be sent by the court to [Area]  Police to note;

Personally, I'm of the view that the place to spell out what is and is not injuncted is in the injunction itself. I don't think it is helpful to spread exceptions across two documents and I can foresee arguments about whether or not a provision like this in a CA order can as a matter of law limit the scope of an injunction that on its face prohibits communication. Messy.

Also, there is now a right to apply (good). But its at page 10 so will likely be forgotten. It should be on page 1 with the penal notices :

Right to apply

If you were not told about the hearing you may ask the court to reconsider this order.  You must do that within seven days of receiving this order by writing to the court and asking the court to reconsider.  You must tell the person who applied for the order that you are asking the court to reconsider the order.

Next hearing provisions are on page 18! SCROLL DELETE SCROLL DELETE SCROLL SCROLL SCROLL *goes for cup of tea and never comes back*

.....

Oh alright, I've come back. I've realised there is a new draft reporting restriction order too, so I thought I'd take a look at that, and compare it to the existing template attached to the CAFCASS Practice Note.

There are a couple of notable changes :

The new order requires the names and dates of birth of the subject children on the front page. I'm not sure if this is intentional - typically the names of the children aren't on the RRO itself but in a confidential annex. I suppose the reality is however that any person on whom the order is served will know or will need to know the name of the children to ensure that they comply with the order, so it might as well be on the face of the order as anywhere else.

There are some new guidance notes [in green] about adaptations that may be made if, for example, someone acts via a litigation friend. Although the heading, formatting and sequencing are jigged around a bit the substance is largely the same. One update however is in the categories of publication that are prohibited : as well as the familiar 'newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite program service', the new phrase 'social networking website' now makes an appearance. For my part I'm not sure that quite captures what is intended. Social networking websites would be captured by the somewhat tautologous 'internet website' anyway - I think this is intended to capture social networking by application rather than when viewed on a web browser. Again, I think this would already be covered by 'public computer network' although this would perhaps not be immediately understood by many members of the public. I agree it is wise to include 'social networking' in the list for emphasis even if it is technically covered elsewhere, but think a more all encompassing and understandable term would be 'social networking platform'.

Finally, the current order prohibits as standard not only publication of a child's address but also 'any residential home or hospital, or other establishment in which the [Defendant/Child] is residing or being treated (‘an establishment’)' [my emphasis]. The new one just includes residential addresses. I'm not sure why this should change, particularly bearing in mind some hospital cases last year.

 

I find that I spend an increasing amount of time drafting case management orders and child arrangements orders. They take up time, mental energy and drain goodwill. We do not get paid extra for them. When litigants in person are involved drafting is more likely to become drawn out and contentious. In cases involving lawyers the time it takes to work through a template has almost killed the previous practice of drafting at court - it just takes too long, longer than it used to take us to draft by hand from scratch - so we end up spending hours pinging multiple iterations to one another on email, and there is always one person who can't work / can't see the change tracking and somehow you always end up with multiple conflicted versions as people update the wrong iteration...

The intention of these templates is good. And the wording itself is generally much better and more comprehensive than earlier templates. They have potential to be help us to help the court, but I'm not sure these are going to reach that potential (and I'm not sure how much they are going to help judges when they are left to draft their own orders either).

I've made my plea in pink above. If I were feeling more ambitious I'd like to make a plea for them to be broken down or reordered so that the selection process is more workable and streamlined. I'd like to make a plea for someone to build in autocompleting fields so that once you have told the document that the APPLICANT Is Mrs Jones it will fill it in each time there is a box saying APPLICANT. Better still, I'd like to make a plea for someone to build a macro so that you can punch in the details of the parties and then select by tick box that you want an order with paragraph 1 CAO live with, paragraph 2 Fact find, paragraph 3 Next Hearing and bingo it includes those paras and no others. Maybe I should do it myself and sell it for vast amounts of money before retiring to the Bahamas, but in truth I won't have time because I will be busy doing the SCROLL DELETE SELECT ALL TO BLACK shuffle....

 

OH. And FINALLY - please can we ditch 'FILE AND SERVE'? At least in private law children orders if not elsewhere? Send to the court and CAFCASS and send to the other parties works just fine and has a chance of being correctly understood.

 

Feature pic : Vincent Albanese on Flickr (Creative Commons - thanks)

One thought on “Template Orders – the drafting lawyer’s friend

  1. HelenSparkles

    Different versions of documents need version control … this was new to me and has changed my life.

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