Still “too many” incidences of non-compliance with Public Law Outline, Presiding Family Judge for London warns

Issuing a revised version last week (30 September) of the Local Practice Note: Ensuring adherence to the Public Law Outline in London, which was first issued in November 2024, Mr Justice MacDonald noted that practitioners can expect the PLO to be applied “rigorously” in the capital.

The revised note “sets out the consequences of this”, he added.

In a covering letter, the judge said the revisions made to the Practice Note centre on reiterating the test of necessity for both the instruction of expert evidence and the attendance of experts for cross examination at any final hearing.

A similar revision is made in respect of controlling the use of intermediaries. Minor changes have also been made with respect to the consequences of default of case management directions.

In November 2022, the President of the Family Division, Sir Andrew McFarlane, told all involved in public law children cases that “delay has become normalised”, and that there needed to be a “radical change of culture within the family court”.

He reiterated the need for practitioners to “reconnect with the core principles of the Public Law Outline”, to ensure that the statutory requirement of completing each case within 26 weeks was met once again.

Related Articles

Emergency duty social workers at North West council to be able to access live police body-worn camera footage under partnership with local police force

National Workload Action Group calls for national guidance on use of AI in children’s social care

Care proceedings taking less time, with more disposals within 26 weeks compared to same time last year: Family Court Statistics Quarterly

Council and IRO criticised for three-year delay in making application for revocation of placement order

Law Commission recommends “simplified and unified” legal framework for disabled children’s social care law, sitting within Children Act 1989

Alongside the 26-week requirement, another core principle of the PLO is adherence to Part 12 of the Family Procedure Rules 2010 – a statutory code setting out the legal requirements for the case management of public law proceedings.

In the revised Local Practice Note, Mr Justice MacDonald said: “In particular, any application within public law proceedings must be issued using the correct court form and the correct fee paid before the court will deal with the application.

“It will no longer be acceptable for applications for case management directions, or their variation, to be made by way of email to the court or judge. Emails requesting case management directions, or variations thereto, will not be dealt with.”

On the instruction of expert evidence, Mr Justice MacDonald clarified: “The court will only permit the instruction of an expert where it is demonstrated to the court that to do so is necessary to assist the court to resolve the proceedings justly’ and not simply that it is merely desirable or helpful.

“The fact that all parties agree that a particular expert is necessary will not automatically lead to permission being given for that expert to be instructed. The question of whether expert evidence is necessary is a matter for the court.”

He added: “FPR 2010 r.25.9(2) stipulates that the court will not direct the attendance of the expert at a final hearing unless it is necessary to do so in the interests of justice. It is incumbent on any party seeking to cross-examine an expert to make an application for the court to direct the attendance of the expert.”

The Local Practice Note further clarified that all public law cases in London will now return to the “much tighter procedural template” required by the PLO.

Mr Justice MacDonald said: “Each case will, save where demonstrably necessary to deal with the case justly, be limited to the three hearings provided for by the PLO.”

In a section on Controlling the Use of Intermediaries, the revised Local Practice Note states that intermediaries should only be appointed by the court where it is “necessary to do so and not simply because the process would be improved or made easier”.

It adds: “Consideration will need to be given to whether it is necessary to appoint an intermediary for the whole final hearing. It is not appropriate for intermediaries to be appointed just in case they may be required.

“In deciding whether it is necessary to appoint an intermediary, the court will have regard to the facts and issues in the case, including factual complexity, legal and procedural difficulty, and length, and to whether there are other adaptions that will permit effective participation without the need for an intermediary. All advocates should be familiar with the Advocates Gateway and the advice on how to help vulnerable parties and witnesses understand and participate in the proceedings. An expert recommendation for an intermediary is not by itself determinative of the question of necessity.”

On the consequences of default of case management directions, the revised note reminds practitioners that pursuant to FPR 2010 r 4.5(3), the time limits specified in a case management order may not be extended by agreement between the parties.

It adds: “Where a hearing is rendered ineffective due to a failure by a party or parties to make a timely application for relief from sanction prior to default, the court may give consideration to a costs order or other appropriate sanction.”

The revised note also covers the following topics: