Vary, revoke or appeal
In the recently decided case of CS v ACS & Anor  EWHC 1005 (Fam) the President of the Family Division, Munby J has rectified an area of the law that was causing difficulties for anyone seeking to vary a consent order. It concerns a Practice Direction supplementing the Family Proceedings Rules 2010 which after detailed analysis, Munby J has decided is ultra vires and therefore of no legal effect.
The President ran through the relevant sections of the Statute as follows:
First, section 31F(3) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crimes and Courts Act 2013) provides that:
“Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.”
However, section 31F(6) provides that:
“The family court has power to vary, suspend, rescind or revive any order made by it, including –
(a) power to rescind an order and re-list the application on which it was made,
(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c) power to vary an order with effect from when it was originally made.”
Rule 4.1(6) of the Family Procedure Rules 2010, which is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, provides that:
“A power of the court under these rules to make an order includes a power to vary or revoke the order.”
Thus, the family court (by virtue of section 31F(6)(a) and FPR 4.1(6)) has a general power to “rescind” or “revoke” an order.
But what about appealing a Consent order?
When it comes to appeals of a consent order, Munby J goes on to highlight the following:
Appeals to the family court, and from the family court to the High Court, are regulated by FPR Part 30. FPR 30.3(1)(a) provides that permission to appeal is required where the appeal is from a district judge. FPR Part 30 is supplemented by PD30A – Appeals. PD30A para 14.1, headed ‘Appeals against consent orders’ provides that:
“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged” (emphasis added).
The President found that the final sentence (emphasised above) stating that a consent order made by a district judge could be challenged only by way of an appeal, encroached on the right of a litigant in certain circumstances to apply to the court without first obtaining permission and was therefore ultra vires and should be treated as a nullity.
Non-disclosure, mistake or fraud
The judgment enables an application to go ahead to set aside a consent order under Rule 4.1(6) rather than by way of an appeal. In CS v ACS & Anor, the wife alleged material non-disclosure by the husband of his financial position when the consent order was originally entered into (back in 2009). But the judgement extends to applications to set aside a consent order for not just non-disclosure but also for mistake and/or fraud.
What the judgement does not do, and therefore leaves open, is the route to take if there is an supervening event after the consent order is made (otherwise known as a ‘Barder v Barder event ( AC 20,  2 All ER 440,  2 WLR 1350,  2 FLR 480)). Watch this space on that one!
For more details or if you would like any advice on consent orders please feel free to contact Paradigm Family Law on 0845 6020422 or email us at [email protected] and ask us about our fixed fees and free initial consultations.
Note: Family Law Hub has issued guidance and a link to the (necessarily) updated procedural notes for @aglance users which can be found here.