Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11
Well, perhaps having hit practitioners with 18 new statutory instruments containing the rules for how things are to be done on Tuesday 22nd April, many of which we got on Wednesday (two working days before) might not be classed by some churlish curmudgeons as smooth and efficient.
[As you may have picked up over the last two years, I READ. I quite like reading law. I even quite like reading statutory instruments. But I draw the line at reading 18. If even I’m not reading them, I have to ponder “Who is?”]
Perhaps also having changed the rules about bundles from next Tuesday, and doing so two working days before, after most of them would have already been sent out, could have been smoother and more efficient, but you’d be a fool and a communist to say so.
Anyway, here are the President’s new rules about bundles.
http://www.familylaw.co.uk/system/uploads/attachments/0008/5165/FPR_PD_27A__Bundles_.pdf
I think on the whole, I rather prefer Sedley J’s rules
http://heinonline.org/HOL/LandingPage?handle=hein.journals/judire1&div=8&id=&page=
- First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.
- Second Law: Documents shall in no circumstances be paginated continuously.
- Third Law: No 2 copies of any bundle shall have the same pagination.
- Fourth Law: Every document shall carry at least 3 numbers in different places.
- Fifth Law: Any important documents shall be omitted.
- Sixth Law: At least 10 per cent of the documents shall appear more than once in the bundle.
- Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
- Eighth Law: At least 80 per cent of the documents shall be irrelevant. Counsel shall refer in Court to no more than 10 per cent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.
- Ninth Law: Only one side of any double-sided document shall be reproduced.
- Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.
- Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the 2 arches do not meet.
In any event, changes are afoot on bundles. People need to be aware that none of the source material will be in a bundle read by the Court UNLESS the Court has specifically directed its insertion. If you want to rely on contact notes, foster care records, police disclosure, medical records, school reports, then you are going to need to apply for them to be added to the bundle – and expect to have to justify exactly why they are proportionate and necessary.
That is going to be particularly important if you have picked up a final hearing brief for which someone else did the IRH – if they got the contact notes in, you’re going to be expected to make some use of them or annoy the Judge who agreed to their insertion, or worse – if counsel at IRH didn’t ask for them and you want them, you’re going to have to make an application. (And those notes won’t be available at a moments notice, so I suspect you will need to put everyone on notice in good time that you intend to do so)
Everyone is to file a position statement, limited to 2 pages, for each hearing. And they are expected to set out the orders they seek both at that hearing and final hearing. (Expect to see a lot of bland “We seek Care / Supervision Orders at final hearing, depending on the outcome of assessments” because anything else from the LA or Guardian is a hostage to fortune / evidence of prejudgment)
Case summaries are limited to 4 pages – bad news for any existing pro-formas in courts around the country which would run much longer than that.
Case summaries for cases done before justices are to be anonymised. (I know, they are sent to the justices along with a bundle of papers that are not anonymised, I have no idea what ill this is intended to remedy or what sense it is intended to make)
4.4 Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents.
You will also note that in cases before the justices, we need to count the pages for them. DJ’s and circuit judges are expected to be able to count for themselves, one surmises.
This bit is going to be loved by Local Authorities who are dealing with the RCJ (thank God, it only applies to the RCJ. The people who wrote this have CLEARLY never tried to have a productive telephone call with the RCJ)
8.2 Upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall no later than 3 pm the day before the hearing:
(a) in a case where the hearing is before a judge of the High Court,
telephone the clerk of the judge hearing the case;
(b) in a case where the hearing is before any other judge email the Clerk of the Rules at RCJ.familyhighcourt@hmcts.gsi.gov.uk;
to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant’s solicitor.
The bundles are to be limited to 350 pages or less – unless the Court orders otherwise. In case you were thinking of being a wise-guy loophole sort of person, they have already anticipated that you might just use REALLY HUGE pieces of paper
5.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.
Okay, so if I can’t use REALLY HUGE pieces of paper, I’ll just write really small. Nope, already got that covered
5.2 All documents in the bundle shall (a) be copied on one side of paper only,unless the court has specifically directed otherwise, and (b) be typed or printed in a font no smaller than 12 point and with 1½ or double spacing.
My last loophole is that there is not a requirement that the bundles be written in English, so I can lodge everything in shorthand and still comply with the practice direction.
[By the way, all of my bundles are currently double-sided, which means that everyone now has to photocopy them all again single-sided and confidentially shred the ones that were perfectly fine yesterday. Approximately 11,000 cases across the country, each shredding 200 pieces of paper purely for the benefit of this practice direction. I hope Sting doesn’t read my blog. Also, 350 pages of single sided paper don’t actually fit into a single lever arch folder… 350 pages of double-sided can be a bit of a tight squeeze]
5.3 The ring binder or lever arch file shall have clearly marked on the front and the spine:
(a) the title and number of the case;
(b) the place where the case has been listed;
(c) the hearing date and time;
(d) if known, the name of the judge hearing the case; and
(e) where in accordance with a direction of the court there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).
[As has been pointed out, as nobody any longer knows how to distinguish between two separate buildings – Trumpton Family Proceedings Court and Trumpton County Court, since on Tuesday they are both just Trumpton Family Court, that’s not that easy any more]
All numbering is to be “Arabic”
Well, if that will help…
- 1 – Wahid
- 2 – Ithnaan
- 3 -Thalaatha
- 4 – Arba’a
- 5 – Khamsa
- 6 – Sitta
- 7 – Sab’a
- 8 – Thamania
- 9 – Tiss’a
- 10 – ‘Ashra
If you need to go up into the hundreds, here’s the link http://blogs.transparent.com/arabic/arabic-numbers-1-100/
And of course, there’s a stick for any breach of the practice direction – you can be kicked out of the list, kept back to the end of the list or be hit for costs.
Penalties for failure to comply with the practice direction
12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a “wasted costs” order or some other adverse costs order.
Remember, this applies from Tuesday next week. Happy Easter.
We ask again…
Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11
To end on a happier note – this being Easter, and it being a piece about bundles AND my blog title being inspired by Dr Seuss – this is an actual genuine US judgment refusing to allow a party to exhibit a hard boiled egg to his statement
http://kevinunderhill.typepad.com/Documents/Court_Orders/Hard_Boiled_Egg.pdf
suesspiciousminds 
Our numbering system is commonly referred to as Arabic because that’s whence it came. As for the rest, I’m confused because the bundles / 350 pages bit and the RCJ bit was in President’s Guidance of several years ago and is in PD27A now. But what happens to the current case summary, then?
More and more position statements is a backward move as the CMO puts the parties positions down anyway; wasn’t that the point? My colleagues favour one sided pages but I’m not looking forward to twice as many pages and twice as lengthy bundles. Their point is precisely that bundles are now more rather than less flexible, so they don’t have to be shreded and redone. Two sided pages came in late, once photocopiers could do that (years ago, children, they could only photo copy one side)- until then you had to draw a line across the unused page, didn’t you? (I remember bodgers and green tape, btw).
It would be nice to have a little bit saying that at all times in order to esure that the requirements of the overriding objective are met and the paramountcy of the child’s welfare is observed, the conduct of the court and the parties will be such as to ensure flexibility and mutual respect and that punitive measures will be subservient to professional cooperation.
Lucy in the Sky with Diamonds.
Yes, I was just being childish about Arabic numbering.
well suppose I have to throw out my box of sparkly coloured crayons specifically purchased for this very event on Tuesday, got the idea from another US judgment, seems to have turned out nice again
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saving, ta
Here’s the President’s Guidance of July 2006
Click to access PDcourtbundles.pdf
right being totally straight not even a hint of sarcasm when i ask this ……
Does that mean my LA jack russell opposing barrister has to spend the full of her Easter holiday redoing re-paginating altering re-writing and basically re-drafting the full 2+ lever arch files of these proceedings ready for the court hearing the first working day back next week ????
i ask this with genuine concern as i have my nails spray tan and massage booked in for tomorrow ……
but if this appears to be correct i may have to bring my pamper treatments forward in the day to allow travel time to York in order to celebrate in her local pub her misfortune 🙂
ohhh yeah karma’s a biatch and i shall be toasting olde pressy mumby if im correct in my interpretation Whoop Whoop that Guy whoop whoop certainly brightened up my Easter holidays lmfao !!! xx
On the strict letter of the law, yes. I think that most judges are going to be a bit tolerant in the first week of the new arrangements. (Cynically, I suspect that in a years time, most Courts will have reverted to what works for their local area and the bundle practice direction will just get dug out if the case is going up to the High Court.)
This one’s going to be fun:
“(Requirement to phone the judge’s clerk the day before the hearing) to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant’s solicitor.”
Sooo – you finally get through to the clerk at 2.45 p.m. No, he hasn’t had the bundle. You and the solicitors 100% know that the the bundle has been delivered to court so that means some idiot there has lost it. You now have to phone the solicitor, who is inconsiderately out at court on another case. You eventually raise her colleague, who is running around like a mad thing dealing with an emergency injunction, and break the bad news to her. She now has to try to juggle her emergency case with trying to find the file and the bundle, get it photocopied, and get it to court all within an hour or so. You and solicitors have collective breakdown. You fetch up at court next day to find judge sitting there wondering why he has two identical copies of the bundle and telling you off for wasting paper and court time.
Judges really should be made to work in solicitors’ offices for at least a month of each year. They might learn a thing or two about proportionality and practicality.
Not being a lawyer, I may be missing something deeply obvious here and if so apologies but..
In the old days, when undertaking ‘full psychological assessments’ (not IQ number crunching) on a whole family in Proceedings, I might be having to consider a whether one or more parents/step parents/partners have any diagnosable/treatable mental health difficulties, how (if at all) certain other difficulties (substance misuse, criminal offences, behaviours towards any other person/service that might indicate ‘anger management difficulties’) might shed light on any diagnosis, level of risk and how they might impact on parenting. Domestic violence allegations were frequently in the mix, as were the impact on parents of their own upbringing, and crucially, if this was ‘abusive’, and parents were still in contact with their own family/extended family, how would this impact on levels of risk.
And then the children – who, if below a certain age would need to be observed in several different environments (nursery/school, with parents in contact, foster care) in order to reliably evidence attachment difficulties, ‘harm’ likely to be related to parenting received. If those children (as is frequently the case) also had other complex behaviours that might or might not be linked to (for example) Autistic Spectrum Disorder or ADHD then this would need even more information to be available to make sure that what looked like ADHD was not more likely to be highly anxious and agitated behaviours related to abuse the child had suffered.
Many of the important pieces of evidence that are required to back up opinions about crucial areas such as whether a parent has a ‘diagnosis’, what weight to give to all of the factors which are impacting on a child’s development, have to be disinterred from the vast bundles that have previously been part of a care proceedings assessment. I can pick out what is relevant re: diagnosis, developmental and attachment issues for the child etc, because that is what I am trained to do.
So,
Who is going to sit down with the medical notes, the Police disclosure, the school records and pick out which bits matter and which bits don’t and then summarise them into a document which includes everything the Court needs to know on each of the parents/children, extended family and nothing that is superfluous?
Is it going to be the case holding social worker again, who has, by 22 April undergone additional medical, forensic, educational, psychological and paediatric training sufficient to ensure they extract the key points from all the ‘background’ documents or is it going to be the job of lawyers (if so which ones – LA only?). Or does the President have an army of Civil Servants used to writing soundbites up his sleeve to prepare the 350 pages that will play such a major role in determining the future of highly complicated families and their children. Perhaps the Legal Aid Agency could add another string to their bow and prepare the documents via some tried and tested mean, median or mode assessment (just like they do to decide how many hours are ‘allowed’ in expert assessments)? Maybe an allocation of pages based on age – perhaps a randomised selection of 6 pages per child per year or perhaps just measure all the bundles and take out so many centimetres from each?
Seriously, how is it going to work please?
Spent 45 minutes in court this morning with diaries poised from all parties whilst legal adviser got ever more ratty on telephone with listing officer at unified family court centre about who could do final hearing and where. Not convinced that all is going to go as well as President fondly declares.
I am also troubled that the MOJ stats are that the average set of care proceedings is now at 33.4 weeks (after a year of official pushing for 26 and a previous year of it being an unspoken goal). That means, on my reckoning that the AVERAGE case will require the 8 week extension which is said to be exceptional.
There’s not really anything in the Act which will speed things up – so am not seeing where that extra 8 weeks is going to get shaved off the average time. It has taken a year of pushing to get down to 33.4 and the biggest time saver (reducing use of experts) is a card that has already been played. Also, the volumes of cases massively went down as everyone got to grips with the PLO requirements – if the country can’t hit 26 week average now, I’m not seeing how it wil do it this time next year.