In his latest view from the President’s Chambers Sir James Munby sets out his plans, following consultation, for specialised regional Financial Remedy Courts and for a proposed new form A.
This court within the family court is based on the incredibly successful Financial Remedies Unit (FRU) at the Central Family Court. It was first publicly proposed by HHJ Hess and Joanna Miles in November 2016.
Financial Remedy Court pilot
The ambition for a Financial Remedy Court is laudable. This will involve some re-arrangement of existing court centres to set up specialised regional financial remedy units dealing with Family Court financial work only. The ambition is that the staff and the judiciary will specialise in family financial work to ensure maximum efficiency and a greater degree of uniformity of approach and across the courts and better predictability of outcome.
The Financial Remedy Court (FRC) will be piloted regionally throughout 2018 starting in London, the West-Midlands and South-East Wales with further pilots to be announced around Easter 2018.
It is intended that the FRC, which will remain part of the Family Court, will handle the following types of proceedings:
- All types of financial remedy applications following divorce/dissolution
- Schedule 1 Children Act applications
- Applications under Part III Matrimonial and Family Proceedings Act 1984.
In due course, applications under the Inheritance (Provision for Family and Dependents) Act 1975 and the Trusts of Land and Appointment of Trustees Act 1996 are to be added to the list.
The FRC will be split into regional hubs under which there will be a number of Financial Remedies Hearing Centres (FHRCs) within the hub area. Each hub will have a lead judge with financial remedy expertise and there will be a national lead judge and deputy (Mr Justice Mostyn and HHJ Hess have agreed to fill these positions). Only ‘ticketed’ FRC judges will handle FRC hearings.
FRC administration and hearings will only take place at the regional hubs or the FHRCs unless good cause can be shown for hearings to take place at non-hub or non-FHRC courts. FRC administration will be separate to the administration of the divorce suit which shall remain at the current regional divorce centres.
The creation of a specialised and regionalised FRC promises great advantages for financial remedy litigants and practitioners. The hope will be that the specialism will allow for greater judicial focus and consistency on financial remedy cases. A similar scheme has operated with much success in the FRU at the Central Family Court. As a member of the Court User Group for that centre generally and specifically for the FRU, I know the feedback has been largely positive.
These are major changes and, as with any re-shuffle of the courts, there are likely to be teething problems, initial backlogs and difficulties re-adjusting. But this should not stand in the way of what should be a move toward greater efficiency and predictability. It will be better for practitioners and parties.
There are some potential difficulties which are immediately apparent. These are seemingly mostly logistical. The proposed hubs and centres will mean that the judiciary, litigants and practitioners may be geographically inconvenienced. Some will have to travel further and wider to access a FRHC. Under the current plans there will, for example, be no FRHC in the county of Suffolk. There is a danger of cutting off access to justice in particularly rural areas where litigants, particularly litigants in person, will no longer have access to a truly local court. Thought will need to be given to potential geographical impediments as the President acknowledges in his latest view.
Specialist finance practitioners have for several decades called for greater specialism of judges who are fully familiar with family law and practice in finance work. This excellent move seems to be a wonderful opportunity.
A new form A?
The president also intends a proposed new form A which can be linked from his latest view above.
Undoubtedly this has been drafted with the FRC in mind and to provide litigants with a one size fits all application form for all types of financial remedy applications which can be heard in the FRC. Allocation and gate-keeping within the FRC has also seemingly been incorporated.
However, in trying to combine various types of proceedings, gate-keeping issues and interim applications, a somewhat confusing and hard to follow form has been created. Whilst the ambition of the form is to be applauded, the execution needs more work for it to be made more user-friendly and, indeed, digitally-friendly.
Issues with the new form
Practitioners will of course become accustomed to the proposed form (if implemented), but it is hard to navigate. There is a risk that litigants in person will submit incorrect and incomplete forms.
The problems seem to stem from the fact that the three different heads of application mentioned above cover three very distinct life events. That is divorce/dissolution, financial provision after a foreign divorce and provision for children (usually but not always in the context of an unmarried couple). Different imperatives apply and different information is needed in each of these contexts.
As practitioners, we are used to dealing with all three and will know which avenue to follow and consequently which part of the proposed form to complete.
Litigants in person do not have the luxury of this experience. Confronted with this proposed form, which will be seen as covering the abstractly named 'financial remedy', they may find it difficult to complete. Section 1 combines standard applications for financial orders following a divorce with applications under Part III MFPA 1984. They are very different and the court requires distinctly different information when applications are made (including in the context of the Part III filter process). Combining the two and providing lengthy and legalistic explanations will inevitably create difficulties for litigants in person. Section 1, questions B and C are particularly verbose and 'legal'.
Schedule 1 applicants should use Section 2. But this is not immediately clear and the worry is that Schedule 1 applicants will find Section 1 confusing. (It might be clearer with drop down options on the online version if this is intended.) Section 2 asks whether the application arises out of a need for financial support for a child or children. This, to a practitioner, means 'Schedule 1 applications go here.' I foresee that many litigants in person with children who are applying either for a financial order after divorce/dissolution or under Part III will fill in this section as well as section 1; this is not the intention of the proposed form.
Aside from issues regarding litigants in person, the proposed form poses difficulties for practitioners.
Section 1 contains numerous questions aimed at gate-keeping questions and interim applications. These include section 37 MCA 1973 applications, set-aside, freezing orders and a broad catch-all.
A lot of detail will be needed and there is a worry that 'n/a' will not suffice or will close off the option to apply once in proceedings. Often at this stage, and particularly when issuing at speed in the context of a jurisdiction dispute, this amount of detail is just not available. The concerns are made more acute given that practitioners may need to support the application with a statement of truth.
It is appreciated that this is intended to gate-keep and to allocate the application, but is it perhaps too much to ask on an originating application?
As international family lawyers, we need to be able to issue proceedings quickly to ‘win’ jurisdiction in a forum race under the EU Brussels II and maintenance regulations. A short and easy to complete form is preferable of course. We have ‘won’ many races against other countries which require long originating application forms. It would be detrimental to have a form A which slows litigation down.
Similarly, the proposed form asks for details of pension plans which may be subject to pension orders. There is an option to say that the details are not known which I suspect will be selected more often that it is not.
Section 3 contains more gate-keeping questions including the value of the claim in dispute (an arbitrary figure of £25,000 as a lump sum is chosen). Pre-disclosure, the answer to these types of questions is likely to be 'don’t know.' The fear is again that a litigant in person will be bamboozled by the many legalistic options at 3(B)(i) or that they may prematurely state their case including as to quantum.
Finally, the proposed form completely strikes all mediation-related entries from the current form A. The cover notes mention in passing the requirement to have a MIAM, to fill in the necessary forms or to have an exemption. However, it runs contrary to a lot of the good work that has gone on over the last few years to try to encourage mediation via the court forms. It seems a step back to now delete the detailed and helpful options from the proposed new form A.
Without wishing to dampen the commendable work being done to create a specialist FRC with proper allocation and gate-keeping, I am concerned that the proposed form tries to do too much and creates problems for practitioners and litigants in person.
A quick but meaningful period of consultation should be allowed to incorporate these concerns. It may be that all types of application can be included on the same form and that gate-keeping and the imperative to mediate could also be incorporated. But this must be done in a more user-friendly form with the interests of litigants, particularly litigants in person, duly considered and in the best way to meet ongoing needs as we transition toward online applications.
By Stuart Clark, associate solicitor at The International Family Law Group LLP
About the author
Stuart Clark (Stuart.Clark@iflg.uk.com) is an associate solicitor at iFLG and has a wide breath of experience in all issues arising from the breakdown of a relationship, but particularly specialises in financial and forum matters. His work involves complicated trust and partnership issues when often quick advice needs to be obtained from a specialist lawyer in another jurisdiction to run concurrently to his cases in hand. Thank you to David Hodson (David.Hodson@iflg.uk.com) for his input and assistance with this article.