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(California Court of Appeal) – Reversed and remanded a spousal support order, in a case where a wife sought to reduce her support payments to her former husband. Held that the trial court failed to consider the parties’ reasonable expectations as expressed in their dissolution agreement.

(California Court of Appeal) – Dismissed a mother’s appeal from an order terminating parental rights to her son. Also denied her petition for writ of habeas corpus, concluding that a habeas petition may be filed in dependency cases only in limited circumstances not present here.

(California Court of Appeal) – Affirmed the denial of a request to renew a three-year domestic violence prevention restraining order. A woman had obtained the restraining order against her former husband.

(California Court of Appeal) – Held that a California superior court had jurisdiction over a child custody proceeding, in a case raising questions under the Uniform Child Custody Jurisdiction and Enforcement Act. The mother had previously initiated a child custody proceeding in her home country of Belarus.

(California Court of Appeal) – In a Chapter 7 bankruptcy case, held that when the nature of a debt is such that its discharge will directly and adversely impact the finances of the debtor’s spouse or former spouse, it is nondischargeable in bankruptcy, even if it is not directly payable to the spouse. Affirmed the district court.

This year I will keep my review of the year mercifully short. Not only will I limit it to one post, I am only going to mention my top five stories of the year, stories that will all make a difference to families and family justice in the future, one way or another. In fact, as I put this together I realised that I am not so much looking back, as looking forward. Accordingly, I decided that the best way to review 2018 was to peer into my trusty crystal ball to look at 2019…

Story 1: I see a future in which couples can divorce without animosity.

I will begin with the obvious one, and the one that I suspect most commentators would agree is the most significant family law story of the year: reform of the law on divorce.

The mists are clearing. I see a 69 year-old woman. She looks very sad and frustrated. She is desperate to rid herself of an unhappy marriage. However, she still has to wait another year before she can at last divorce her husband, on the basis that they have now been separated for five years. She had tried previously to divorce her husband on the basis of his ‘unreasonable behaviour’, but he defended her petition, and the law said she could not have her divorce, thereby trapping her in a loveless marriage.

The mists are returning. The woman fades, and then returns. This time she looks happy. The law has changed! She no longer has to blame her husband for the breakdown of the marriage! She just has to file a statement with the court saying that the marriage has broken down, and there is no longer any such thing as a defended divorce. She can finally get on with her life.

The woman’s name, of course, is Tini Owens.

Story 2: I see a future in which all are treated equally.

Civil partnership for opposite-sex couples.

Somewhere in the cloudy depths of my crystal ball I spy a young couple. They are a very principled couple. They want to enter into a legal relationship, but they consider the institution of marriage to be patriarchal and sexist. Ideally, they would like to enter into a civil partnership, but until now that option has only been open to same-sex couples.

But what is this I see? The couple are undergoing a ceremony at a Register Office. Surely, they have not disregarded their principles and decided to marry after all?

I listen to what the Registrar says. This is not a marriage, but a civil partnership! The happy couple beam at one another as the ceremony ends.

Their names, of course, are Rebecca Steinfeld and Charles Keidan.

Story 3: Do I see a new course being plotted?

A new President of the Family Division.

As I peer deeply into my crystal ball I see the fog clearing. I am at some sort of conference. The next speaker is being announced – it is the President of the Family Division!

But what is this? This is not the familiar face we know and love. This is a new face. It is, of course, the face of Sir Andrew McFarlane.

What will Sir Andrew say? Will he announce some new initiative to reform family justice? Will he plot a new course for those involved in the family justice system? Will he, indeed, be as ‘hands on’ as his predecessor? The audience eagerly await what he has to say.

Unfortunately, the fog returns as he begins to speak. We will just have to wait to hear what he says.

Story 4: I see a better way of dealing with financial disputes.

Financial remedy courts.

As I look into my crystal ball all is murky. I can barely make out what is taking place. It seems to be some sort of arcane ritual, with those present unsure what is going to happen to them.

Ah, then I realise what has happened. My crystal ball is stuck in the present, watching a financial remedies case being heard in a family court in 2018. I give the crystal a clean, and it moves forward a year.

That’s much better. The court is now run by specialists, who help most of the couples settle their cases by agreement. And those cases that don’t settle are decided in a far more predictable way, consistent with other such courts around the country.

Both lawyers and litigants in person have a better idea what to expect when they go to court to sort out financial remedy claims!

Story 5: I see a brave new paperless world.

Digital divorce.

The view in my crystal ball is hazy, but the haze is clearing. I see a lawyer sitting at her desk, her eyes fixed on the computer screen in front of her.

I can now make out the words on the screen. The lawyer is filing a divorce petition on behalf of her client.

I watch as she submits the petition. I look on jealously as it is accepted, remembering how long it used to take me to issue a divorce petition by post, and how the court would so often come up with some trivial reason to reject it, causing further delay.

The lawyer quickly turns to another client’s file on her computer (I can’t see any paper files anywhere). This time she is applying for a decree absolute. The application is gone in moments…

____________

OK, I realise that I may be somewhat optimistic as far as the timing of some of these changes goes. We may, of course, have to wait until beyond 2019 for no-fault divorce, civil partnerships for opposite-sex couples, country-wide financial remedy courts and a fully digitised divorce system. Still, at least we can dream…

 

The post 2018: The year we looked to the future by John Bolch appeared first on Stowe Family Law.

A week in family law

The latest figures for care applications and private law demand, for November 2018, have been published by Cafcass. In that month the service received a total of 1,214 new care applications, 1.2 per cent less than November 2017. The total number of new public law cases during the current year (since April 2018) is running at just under 2 per cent lower than last year. As to private law demand, Cafcass received a total of 4,111 new private law cases, which is 9.1% higher than November 2017. The total number of new private law cases during the current year (since April 2018) is running at nearly 3 per cent higher than last year. So the pattern seems to be becoming clearer: modest decreases in public law cases, but modest increases in private law cases.

Still on the subject of statistics, the latest ones for legal aid, for the quarter July to September 2018, have been published by the Ministry of Justice and the Legal Aid Agency. Amongst other things, the statistics showed that Mediation Information and Assessment Meeting (‘MIAM’) volumes were 5% lower than in the same quarter of 2017, and that mediation starts decreased by 3%, and are now running at just under half the levels they were at prior to legal aid being abolished for most private law family matters in 2013. A stunning success for the government’s policy to fill the void left by abolishing legal aid with more cases being settled by mediation. Of course, as has been pointed out many times, the main reason for fewer mediations is that solicitors used to ‘direct’ many cases into mediation, but were taken ‘out of the loop’ by the abolition of legal aid. Perhaps that fact might encourage the government to restore legal aid for early advice, when it finally gets round to finishing its legal aid review in the New Year.

Perhaps the most notable thing shown by the legal aid statistics with regard to family matters, however, is the ‘bottom line’, i.e. the total expenditure during the period. The statistics show that the total family law legal aid expenditure during the quarter was some £138 million, with public law work accounting for some £116 million, and private law work some £22 million. These figures demonstrate just how little (comparatively) is now spent on legal aid for private law family matters. More importantly, however, they show just how costly public law legal aid is, an indication of the scale of the problem of children needing protection in this country.

Moving on, it has been reported that grandparents (and aunts and uncles) may get more ‘access’ rights, under plans being considered by the government. Leaving aside the fact that the term ’access’ was replaced by the term ‘contact’ nearly thirty years ago, the story is that Justice Minister Lucy Frazer QC has agreed to look at the rules allowing grandchildren to maintain contact with grandparents after parental separation, following pressure from MPs and campaigning groups. Specifically, campaigners seem to want two changes: a presumption in favour of contact between the child and its close relatives, and the removal of the requirement for such relatives to have to obtain the leave of the court before they can apply for a child arrangements (i.e. contact) order. As to the former, a presumption didn’t make any real difference when it was introduced in relation to parents (it was never going to), and it won’t make any real difference in relation the grandparents/aunts/uncles. As to the latter, is this even news? I seem to recall this being raised a while back. Whatever, the ‘leave’ stage is really little more than a formality in most grandparent contact cases, so again I can’t see that removing it will make much difference.

And finally, yet more statistics for your delectation. Or perhaps not. Experimental statistics on cases processed under the 2012 statutory child maintenance scheme administered by the Child Maintenance Service, between August 2013 and September 2018, have been published, courtesy of the Department for Work and Pensions. I was going to make some pithy comment upon the statistics, but the bacchanalian delights of the holiday season beckon, so I will leave it to you to read them yourself if you so wish, here.

Have a great Xmas and New Year break.

The post A week in family law: Caseloads, mediation and grandparents’ rights appeared first on Stowe Family Law.