Category: Family Law

I don’t know exactly where the President of the Family Division’s chambers are located, but it must be a lofty perch. From it, the President evidently has a clear view of all he (or she) surveys. Accordingly, it has become a tradition that they should provide us lesser mortals with a picture of all that is wrong with the family justice system (and a pathway to how we should put it right), and our new President Sir Andrew McFarlane is continuing that tradition.

Unfortunately, our new President’s first View from his perch was published on a site behind a paywall, at least until that fact was pointed out (it now also appears on the Courts and Tribunals Judiciary website). Hopefully, this was just an oversight from a man new to the system, and all future Views will be free to, err… view.

So, what does the View contain?

Well, actually not a lot that is new. Much of what he wrote about refers to the ‘workload challenge’ faced by the family justice system as a result of the increase in children cases over the last few years, a topic that Sir Andrew already dealt with in more detail (as he says in the View) in his speech to the Association of Lawyers for Children Conference 2018 back in November, that I commented upon here in this post.

In a nutshell Sir Andrew is fearful that the stress of the workload, “in a system which is already sparely manned in terms of lawyers, court staff and judges”, will “risk the burn‐out of key and valued individuals”. His solution to this, or at least part of his solution, is to allow some corners to be cut, and some time limits to be exceeded.

Think of that for a moment. I find it quite remarkable that the man at the very top of the family justice system is advocating the cutting of corners. Surely, such a situation would have been unthinkable only a few short years ago? I’m not saying that Sir Andrew is wrong to make such a suggestion, just that the fact that he has is an indication of just what a state the system has found itself in. That state, of course, is not just due to the increase in children cases. It is also a result of years of under-funding by the government, and of the swinging legal aid cuts, that have (as was entirely foreseeable) burdened the system with a mass of litigants in person, who require extra judicial resources to deal with.

Of course, Sir Andrew is not talking of corner-cutting that will cause unsound outcomes, or that will adversely affect the welfare of children caught up in the family justice system. He makes a few suggestions of the sort of thing he has in mind, including setting the earliest and latest times that courts are expected to sit (how does this fit with the extended court hours pilot announced by HM Courts & Tribunals Service and the Ministry of Justice last November?); agreeing the latest time in the evening, and the earliest time in the morning, when it is acceptable to send an email to another lawyer in a case or to the court; and reducing the components to be  expected in a ‘Position  Statement’  to the minimum required, for example simply one side of A4, using bullet points. Quite what effect these things will have upon the workload of those involved in the family justice system, we will have to wait and see.

Otherwise, the View has little else to say. Sir Andrew does mention a couple of other news items of which we are already aware, such as the expansion of the Financial Remedies Court pilot, which he says is working well, and which he is confident  “will be a successful and popular development”, and also the guidance he issued in December regarding the anonymisation of family law judgments involving children, that he hopes will be applied by all Family Courts.

And that, really, was about it. Not that I’m complaining. Indeed, it is refreshing to have a President who is (for the moment at least) a little less proactive. Busy family law professionals have enough to do to keep up with new developments as it is – perhaps Sir Andrew is purposely giving them less to think about, in order to reduce the risk of burn-out!

The full text of the View can be found here.

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And what a busy week it’s been!

First up, the Civil Partnerships, Marriages and Deaths (Registration Etc) Bill received its second reading in the House of Lords. The Bill, which provides, amongst other things, that opposite sex couples may enter into a civil partnership, will now proceed to the committee stage in the House of Lords.

The big news was the unveiling by the government of its draft Domestic Abuse Bill, which it calls “the most comprehensive package ever to tackle domestic abuse.” The Bill is “aimed at supporting victims and their families and pursuing offenders.” Its main provisions include the first ever statutory government definition of domestic abuse to specifically include economic abuse and controlling and manipulative non-physical abuse; the establishment of a Domestic Abuse Commissioner to drive the response to domestic abuse issues; the introduction of new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders to further protect victims and place restrictions on the actions of offenders; and the prohibition of the cross-examination of victims by their abusers in the family courts. For further details of the Bill see this brief summary I wrote here on Monday. The Bill has been generally welcomed by interested parties. Katie Ghose, Chief Executive of Women’s Aid, said that it “has the potential to create a step change in the national response” to domestic abuse, and Suzanne Jacob OBE, Chief Executive of the domestic abuse charity SafeLives, said: “We welcome the government’s set of proposals, particularly putting a greater focus on perpetrator accountability, both through the legal system, civil powers, and programmes that seek to change abusive behaviour.” Let us just hope that the present political uncertainty does not derail the Bill (the prohibition of the cross-examination of victims provision has already been delayed a year and a half by the last general election).

The next big story was not actually news, at least not to all family lawyers. This year’s British Social Attitudes Survey, carried out by The National Centre for Social Research, found that almost half of all people in England and Wales mistakenly believe that unmarried couples who live together have a common law marriage and enjoy the same rights as couples that are legally married. The findings reveal that 46% of the population are under the wrong impression that cohabiting couples form a common law marriage – a figure that remains largely unchanged over the last fourteen years (47% in 2005), despite a significant increase in the number of cohabiting couples. In contrast, only 41% of respondents to the survey rightly say cohabiting couples are not in a common law marriage. Interestingly, the survey showed that people are significantly more likely to believe in common law marriage when they have children – 55% of households with children think that common law marriage exists, whilst only 41% of households without any children do so. Commenting on the figures Anne Barlow, Professor of Family Law and Policy at the University of Exeter, which commissioned the survey, said: “Cohabiting couples now account for the fastest growing type of household and the number of opposite sex cohabiting couple families with dependent children has more than doubled in the last decade. Yet whilst people’s attitudes towards marriage and cohabitation have shifted, policy has failed to keep up with the times. The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children. Therefore, it’s absolutely crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.” Exactly. We must continue to try to raise awareness, and also press for basic property rights for (former) cohabitees.

And finally, almost unnoticed amongst all the other news, this has been Family Mediation Week, an annual campaign organised by The Family Mediators Association which “aims to raise awareness of mediation and how it can help separating families manage their issues collaboratively and productively.” For further information, I would refer the reader to the series of posts here on the subject this week from Stowe Family Law partner Graham Coy, who is himself a member of the Association.

Have a good weekend.

The post A Week In Family Law: A Domestic Abuse Bill, the myth of common law marriage, and more appeared first on Stowe Family Law.