How Courts decide Family Law cases; the family Procedure Rules
What are the Family Procedure Rules?
When cases go to Court, they have to be decided. The Courts make decisions by applying the Law to a particular set of facts. What the facts are depends on the evidence. Where the evidence is disputed, the Judge will decide what the facts are; what has happened.
The Law is set out in Statute; Acts of Parliament. The main ones we use in Family Law are Children Act 1989 (for children), Matrimonial Causes Act 1973 (Divorce) Family Law Act 1996 (Domestic Abuse). There are others, and the above have all been adjusted by later Acts over time.
To flesh these out there are Statutory Instruments. Acts of Parliament confer powers on Government Ministers to make more detailed, rules or regulations by means of statutory instruments. An Act will often contain a broad framework and statutory instruments are used to provide the necessary detail that would be too complex to include in the Act itself. Statutory instruments can also be used to amend, update or enforce existing primary legislation.
Then on top of that the Courts will decide actual cases and give guidance as to how the Law should be interpreted. Lower Courts; have to follow the interpretation of Higher Courts. But of course, while factual situations may be similar, they are never the same. New problems can also be found.
The result is the Law is complicated, and there can often be arguments about how to apply competing elements of law to a particular case. As with most other areas in life, computers have meant that Laws, Statutory instruments and reports of cases are ever longer.
As a Family Lawyer, there is lot to keep on top of. The Law is not always easy, and there can be different interpretations of facts, and indeed disputed facts. This is why Solicitors can often charge in excess of £200 an hour. Being a good Lawyer is skilled work.
Which brings us to the Family Procedure Rules. These set out how the Courts should deal with family cases procedurally.
The Family Procedure Rules 2010
The Family Procedure Rules 2010 and the supporting Practice Directions (even more supplemental rules and guidance) set out a comprehensive framework for family law cases to be dealt with. They apply to all Courts dealing with family work.
The aspect of the Family Procedure Rules that I wanted to talk about here was the Overriding Objective
The overriding objective
These set out how the Courts should approach family cases.
I have reproduced the relevant parts of the Rules below and will add comments at the bottom.
1.1 The overriding objective
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
So cases should be dealt with justly, expeditiously and fairly.
The Court also has to be mindful of saving expense and should not allow cases to take up more than their fair share of Court time.
In other words, there is an expectation that those involved should get on with cases in a focused way.
1.2 Application by the court of the overriding objective
(1) The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by these rules; or
(b) interprets any rule.
1.3 Duty of the parties
The parties are required to help the court to further the overriding objective.
1.4 Court’s duty to manage cases
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes–
(a) setting timetables or otherwise controlling the progress of the case;
(b) identifying at an early stage–
(i) the issues;and
(ii) who should be a party to the proceedings;
(c) deciding promptly –
(i) which issues need full investigation and hearing and which do not; and
(ii) the procedure to be followed in the case;
(d) deciding the order in which issues are to be resolved;
(e) controlling the use of expert evidence;
(f) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(g) helping the parties to settle the whole or part of the case;
(h) encouraging the parties to co-operate with each other in the conduct of proceedings;
(i) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(j) dealing with as many aspects of the case as it can on the same occasion;
(k) dealing with the case without the parties needing to attend at court;
(l) making use of technology; and
(m) giving directions to ensure that the case proceeds quickly and efficiently.
The Court is expected to actively manage cases.
The Court expects parties legal teams to co-operate in a focused way to get cases resolved.
The Court is expected to encourage the parties to use an alternative dispute resolution in appropriate cases. (Mediation).
We have had cases come to us at an advanced stage in proceedings, when the Court is reluctant to allocate time for a final hearing and is not convinced that the case cannot be resolved. Our mediation service has achieved successful results.
Sadly this does not happen as much as it should.
But anyone who enters a Court process, should before they start have a clear idea of what they want to achieve and the evidence they have and need to marshal to justify their case. The reason is that the Court will expect everyone to get on with things.