Tue | Oct 24, 2017

Consent Orders in Family Proceedings

Published:Monday | July 10, 2017 | 12:00 AM

A consent order could basically be described as a contract between litigants that receives the court's approval and sanction.

In a typical civil claim, it is customary for litigants to reach an agreement and enter consent orders without much difficulty, and, certainly, with little or no intervention by a judge. For example, in motor vehicle accident cases, if parties agree on an amount to be paid for damage to a car, or even injury to a person, it is simple to draft an agreement, sign it, and once payment is received, the claim can be discontinued. The usual exception is where the claim is made on behalf of a child, in which case an application has to be made to the court for approval of the settlement.

This takes us to family proceedings involving children. Not only is it possible, it is also advisable, for parties to try to reach an agreement in relation to issues involving children, because it is always in the best interests of all concerned to avoid expensive, time-consuming and, often, contentious court proceedings. The modern legislations, such as the Maintenance Act, actually encourage that approach.

The question is whether it is enough to just sign on the dotted line and discontinue a court action after reaching an agreement regarding children. Will that contract be rubber-stamped by the court and enforced, without more?

The resounding answer some years ago would have been no, and today, the answer might still be the same in most cases. This is because the court jealously guards its right (and statutory duty) to intervene in matters involving children in order to ensure that the children's best interests are always protected, even if the parents do not agree. For that reason, agreements or draft consent orders between parents are still open to scrutiny by the judge, who may refuse to grant them or may even vary them before they become orders of the court.

It is from the court's approval that the orders derive their authority and not from the agreement of the parties. However, once such an order is approved, the issue is never closed because an application can be made by either party to vary or discharge it in the same claim.

 

EXCEPTIONAL FEATURE

 

This exceptional feature of consent orders involving children was raised and discussed in a presentation by Lord Sumpton at a family law conference on July 8, 2016. While acknowledging that family law is special in some respects, in that "family litigants do not have the unfettered right allowed to every other litigant to resolve their differences by agreement", he referred to recent cases that show that there is progress towards "assimilating family law with general principles of law".

One of the cases cited by Lord Sumpton was Radmacher v Granatino [2011] 1 AC 534. Although English public policy still prevents prenuptial agreements from being binding on the parties, the court's decision not to strike down the agreement was influenced by the parties' freedom to contract. The parties had entered into a binding contract and the court refused "to override their agreement simply on the basis that the court knows best".

There is a delicate balance to be achieved between the court's fulfilment of its role to preserve a child's welfare and the desirably of giving parents a free hand to agree on the terms of arrangements for their children, but parents who interface with the court should not be made to feel that their views carry no weight.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.