Our love affair with recitals

I recall, some years ago, being challenged by the legal adviser at a Family Proceedings Court (as they then were) to cite the statutory source of the power to use recitals. I told him that the suggestion that Magistrates could not incorporate recitals in their orders was tosh (I did it sort of politely, honest). I don’t remember now whether he relented, but I do remember that this did (momentarily at least) threaten to jeopardise our carefully constructed agreed order – an order that depended, as so many consent orders do, upon the nuanced and deliberately plotted acknowledgments and soft commitments that can be an essential condition precedent to reaching an agreed way forward.

Recitals, I told him, are discussed in the PLO and clearly anticipated as a working tool for courts to use. Recitals are a record of an accord reached with no binding force, but no less important for that matter. I suspect he capitulated out of weariness at my tiresome banging on about it, rather than out of any recognition of my evident rightness.

Since then we have continued to rely upon recitals more and more, although we now have to squeeze them into the straight jacket of a CAP or CMO form and nobody seems quite to know when recital ends and the real order begins. The blur seamlessly into one another, waiting quietly for the moment when they can unleash an unexpected and novel enforceability problem. Some critics of the CMO and CAP might say they demand us to recite the redundant and the blindingly obvious slavishly hearing after hearing ad infinitum. But I obviously would not say such a thing.

But having a dig at the templates that rule our lives is not what this post is about. Another thing struck me recently, whilst perusing (as one does) the terms of s12 Administration of Justice Act 1960. I suppose I had known, but the penny had never really dropped (or perhaps I had filed it under “interesting but rarely relevant”) : that the terms of our orders are not covered by s12 privacy protection unless the court specifically orders (which it almost never does).

S12(2) provides that :

Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

It set me to thinking about the sorts of detailed and personal information that is sometimes contained in the recitals, for example the mandatory statements of the parties’ positions in care proceedings as the case unfolds, the concessions by the parents that theirs has been a “volatile” relationship, the threshold that is sometimes (not often) set out in full in the body of the order.

All this is publishable. Assuming that is that no person takes a point about a recital not being part of “an order” for the purposes of s12 AJA 1960 – which I think would be a bad point, but I suspect has never arisen. What about documents annexed to an order (for example an agreed or found threshold, a contact schedule, a contract of expectations)? Are they “the text or summary of the whole or part of an order”? Who knows. I suspect it depends on how the order is worded.

One could in some cases glean quite a lot of information about a case and about a family from the recitals in their orders, and I wonder how many lawyers (or judges) have thought about this when drafting?

7 thoughts on “Our love affair with recitals

  1. It is s12 of course, that lets me send a copy of the order to the police or hospital when there’s a portion of the order asking for them to provide documents – otherwise, I would need leave of the Court to produce the document, so that’s not news to me.

    I hadn’t, however, thought about the wider implications with the new horrid template document. There’s a LOT more sensitive and personal information contained within the “Court order” than there used to be, when it basically had nothing personal other than people’s names and a shopping list of when various statements had to be filed.

    Of course, publication in 1960 was a rather different matter to publication today. In 1960, if you wanted to publish something yourself, you’d probably have to take it to a printers and pay quite a bit of cash to have it done. By the mid 1980s, you’d be going to your local library and paying 10 pence a sheet to have it photocopied, but now anyone can publish anything they like themselves within about ten minutes of faffing on the internet. I.e, if they own a mobile telephone made within the last ten years.

    So this might be yet another bit of the AJA which needs revisiting. There’s an obvious issue here, which I won’t spell out because it is a loop-hole that needs fixing. But obviously it would be worth advocates turning their mind to that loophole and inviting the Court to include in the order that the Court expressly prohibits publication of the order (save than to third parties who have been explicitly directed to comply with portions of it)

    [Also, sorry to be a pedant and I HATE to be that guy, but ‘straitjacket’ or ‘strait-jacket’. ]

  2. I have had a number of full and frank discussions with other lawyers re s12 and its application to orders ie that they are not confidential documents unless the court orders otherwise. I agree this point is often forgotten – most notably in a case which transferred to me in which a court which shall remain nameless had granted a family member permission not to disclose her somewhat sensitive and highly personal medical condition. By dint of an order which named said condition but did not contain a provision either making the terms of the order confidential nor providing that it not be served on the party from whom she wished to withhold the information. Derp, derp and double derp.

  3. Recitals are worthless appendages.

    I have just been a Mckenzie friend to a lady who quite reasonably thought that £600 per month agreed with her former husband upon divorce, and sealed by the court, was a guarantee from her former husband, with joint contributions from her of course, to bringing up their one and only child in the middle class standard she’d had for over 5 years.

    Not so, the former husband decided, with no discussion whatsoever, to unilaterally drop the monthly contribution by almost 40% to £373 (i.e. £2724 less support annually). Despite a D11 and an appeal to the court for the restoration of the Consent Order the court says it is powerless to enforce it.

    What sort of a legal system do we have here? Clearly one that completely fails the primary carer, the mother, and their child for years on end with her legal ‘professionals’ picking up fat fees for chronic legal ineptitude and profiting the father whose smug expression of satisfaction says it all – punishing a former wife for daring to divorce him.

    And their child; the totally innocent victim of her father’s unabashed greed, with an already handsome £55,000+ salary, full business benefits package and perks, and now clearly with total indifference to his daughters overall support, health needs and personal development.

    Disgust doesn’t even begin to express my feelings about the application of the legal profession to rights of the innocent child nor indeed to the equal rights and responsibilities upon divorce when the Consent Order is genuinely not worth the paper it’s written on when sealing the financial aspects for a child upon divorce.

    • Russell, I don’t know if this lady had a lawyer or a mckenzie friend when she agreed her order, but any lawyer ought to have explained to her that a recital is a worthless appendage (well, not entirely worthless but certainly not directly enforceable). The problem as you describe it is a function either of poor legal advice or drafting, no legal advice or not listening to legal advice (or possibly agreeing to something but later coming to regret it when a risk you have been warned about eventuates).

      If the maintenance was child maintenance of course there is a limit to the jurisdiction the court has. Parliament has given control for child maintenance to the Child Support Agency (or whatever its successor is called this week). A consent order about child maintenance can only bind for a year. After that its over to the CSA if there is any dispute.

      Beyond that it is difficult to comment on the terms of a consent order without seeing it, and in any event I do not offer advice on this blog. My comments are merely to give other readers some context to what is possibly going on here.

  4. Hi, I was awarded damages in a Court Order. The recitals – or the Waffle section as I call it had a section on confidentiality.
    As this is in the recitals woudn’t I be able to discuss this?
    Shouldn’t the Defendant have had them in the actual Order or a separate Confidentiality Agreement?

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