The difference between a recital and an order

I’m sure that many non-lawyers would assume that everything contained in a court order is equally enforceable. After all, a court order is a court order, isn’t it?

Well, not quite. Court orders actually have two parts: recitals and, somewhat confusingly, orders. What, then, are ‘recitals’, and why are they separate from the orders?

A recital to an order essentially contains anything relevant to the order that cannot be, or is not, actually expressed as an order. It is important to understand here that the court can only actually make an order if it has power to do so, that power usually given to it by statute. Thus anything relevant that the court does not have power to order must be included as a recital to the order. This is true even if the parties have agreed to the thing.

Recitals also have other purposes. In particular, they may set out the background to the order, which can be useful if the order has to be interpreted at a later date. A common example of this in an agreed (consent) financial remedy order is a recital which confirms that the parties agree that the terms set out in the order are accepted by them in full and final satisfaction of all financial claims by either party against the other. One might think such a recital superfluous if the order itself dismisses any such claims, but it can still be useful if the order is defective in some way, or if there is any ambiguity in what the court has ordered.

In the recent case X v Y (Permission to Appeal) the difference between a recital and an order was of considerable significance, at least to one of the parties.

The case concerned an application by a husband for permission to appeal against orders made by His Honour Judge Tolson QC at the conclusion of financial remedy proceedings, and proceedings under the Children Act 1989. I do not need to go into the details of what was ordered, and the grounds of appeal (all but one of which were rejected by Mrs Justice Theis in the High Court, who heard the application), but the facts relevant to this post were as follows.

The parties had been married for about 24 years. They had two children, the eldest of whom suffers from a genetic abnormality which means her interaction with the outside world is very limited. She requires 24-hour care in the family home, which has been adapted for her needs. Sadly, her condition is deteriorating, and her life expectancy is limited.

Judge Tolson had been considering a number of applications, including the wife’s financial remedy application, arrangements for the care of the children, and the wife’s application for a non-molestation injunction. After the conclusion of the evidence the father agreed to move out of the family home. The parties had agreed the home should remain as a home for the older child, for as long as she needs it. Judge Tolson granted the non-molestation injunction and made orders regarding the father’s time with the older child, neither of which was challenged.

Otherwise, Judge Tolson accepted the wife’s proposals about the time she proposed the father should spend with the younger child, and made financial remedy orders. The arrangements for the younger child were agreed by the husband, but Judge Tolson only included them in the order as a recital, as he feared that a “firmly worded order” might become a battleground for the husband, “as he insists on the precise letter of his entitlement under what he would see as the law of the contact order.”

The husband did indeed want the arrangements for the younger child included in the order, so that he could if necessary enforce them. He therefore sought to appeal, not against the arrangements, but against the decision not to include them in the order (the court obviously having power under the Children Act to make a contact order).

Mrs Justice Theis accepted the husband’s argument. She said:

“I do consider this ground of appeal does have some prospect of success limited only to the form of the order, namely whether the time is set out as a recital or as part of the body of the order. It is a narrow but important point. If matters remain as they are and there has been no time spent by the father with [the younger child] the only option the father will have to seek to restore his relationship with [the younger child] in accordance with what was agreed between the parties is to make a fresh application to the court, as there is no obvious route to enforce a recital to an order.”

Accordingly, Mrs Justice Theis gave the husband permission to appeal, limited to the form of the order concerning the arrangements for the younger child.

So it will be seen that there is a difference between a recital and an order, and sometimes that difference can be important.

You can read the full report of Mrs Justice Theis’s judgment here.