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?