Arising from Pauffley J’s decision in Re NL, which set out that it was no longer permissable for Justices Facts and Reasons to be drafted by the parties, or any of the parties, in agreed or not opposed cases, some guidance has been published by the Justices Clerks society, endorsed by the President of the Family Division.
It is fairly short, but in a nutshell
Under no circumstances should any of the parties be involved in drafting the Reasons.
The Court should never ask any party to supply draft Reasons to be adapted
It is fine for parties to provide their own position statements setting out their case, including submissions on the legal principles and how they say that that facts of the case relate to those legal principles
It is fine for the Court to refer to those position statements and as appropriate facts may be adopted (they give as an example “The factual background of this case is as set out in the Local Authority position statement dated…”)
Any contested issues must be identified and the reasons for the Court deciding on a particular course of action or order arising must be set out
The length and complexity of the reasons will depend on the circumstances of the case
The guidance confirms that this applies to private law as well as public law.
“In every case, even when the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure that not only justice is done but also that it is seen to be done”