To undertake, or simply to agree?

Family practitioners take note- Stephen Alderson has delivered another very sensible letter concerning orders in family cases. Knowing you, as only the DS Blogger does, many will simply have clicked on his message and told yourselves that you will read it later. And who can blame you. You are too busy with important matters.

In the spirit of attending to your needs, saving you time, and making things simple, the blogger will tell you what you need to know.

First, Philip Waller, senior DJ at the Family Division Principal Registry has been chatting with his fellow DJ’s around the block. They (including Stephen Alderson) are really concerned about PD 33A. It is to do with ‘undertakings’, and the attachment of a ‘disobedience’ warning.

Now that we barristers have the job of drawing up the orders, we need to get them right. In summary, whenever you thought about including the word ‘undertaking’ in your order, forget it unless you want the offender locked up or flailed. Instead, try the word ‘agreement’ or ‘agree’. It is perfect in a recital,  and carries with it the clear intention of the parties. This way, the judge does not have to threaten imprisonment  for any transgressor. They are happy; and you have shown yourself to be an intelligent drafts-person. DJ Stephen Alderson warns “be prepared to answer the question as to why you need a penal notice”.

Interestingly, the point goes a step further than first appears. Is this another example of the ‘modification’ of family proceedings, away from ‘the order of the court’ to ‘the agreement of the parties’? The blogger thinks it is, and applauds the move. Before too long, court orders will comprise a recital of agreements rather than a record of findings and requirements.

Perhaps another reason to get a mediation qualification?

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