Category: Industry News

You probably won’t thank me for mentioning it, but today was of course supposed to be ‘Brexit’ Day, when the UK was to leave the European Union. Some were expecting to celebrate, some to commiserate, and some no doubt just to breathe a huge sigh of relief. Alas, it was not to be. I shall therefore try to assuage your disappointment with a little family law news.

And I do mean ‘a little’. The news this week has been as scarce as an honest politician in Westminster. This is what I found:

Firstly, that effective co-parenting could be the answer to keeping children out of the courts. I can’t honestly say that this is the most profound insight (after all, if parents can agree matters between themselves, then there should be no need to go to court), but perhaps it had to be said. It was said by Cafcass, at a conference held by them and the Association of Family and Conciliation Courts. Cafcass suggested that agencies from across the sector need to place a greater emphasis on co-parenting and find ways to effectively support parents so that they can prioritise the interests of their child, despite the stress they may be suffering during and after separation. Cafcass also suggested that a public health approach to the problem of ‘toxic parenting’ would help to prevent cases from reaching crisis point, with health and social care professionals working together in a more integrated way, to refer families to” tailored evidence-based support”, in order to resolve difficulties at an earlier stage. Sounds like an interesting idea, but whether it will make much difference, I’m not so sure.

Secondly, the Stalking Protection Act 2019, which makes provision for protecting persons from risks associated with stalking, has come into force. The Act creates a new ‘stalking protection order’ (‘SPO’), which is available on application from the police to a magistrates’ court. An SPO enables the imposition of both prohibitions and requirements on the perpetrator. Any breach of the terms of the SPO would result in a criminal offence. The order is designed for use particularly in cases where existing interventions are not always applicable, namely when the stalking occurs outside of a domestic abuse context, or where the perpetrator is not a current or former intimate partner of the victim (so called ‘stranger stalking’); or the criminal threshold has not, or has not yet, been met (such as while a criminal case is being built), or the victim does not support a prosecution. Let us hope that the Act helps to reduce the scourge of stalking.

And lastly, as I reported here, Sir James Munby, the former President of the Family Division, has severely criticised the government over legal aid restrictions, which left a divorced couple who were labelled as bigamists through no fault of their own having to rely upon free help from lawyers. As I explained in my post, the husband had issued divorce proceedings on the basis that he and the wife had been separated for two years and the wife consented to the divorce, despite the fact that the parties had not been married for two years when the divorce was issued, and therefore had not been separated for two years. The court failed to spot the error, and the divorce went through. Both the husband and the wife subsequently remarried. The error then came to light, and the Queen’s Proctor applied to the court to have the divorce set aside as null and void, which would have meant that the parties were still married to one another, and had therefore committed bigamy. However, Sir James Munby ruled that the marriage was not void. I’m not sure that I agree with his decision, but I certainly do agree with what he said about the legal aid position: “What I was faced with here was the profoundly disturbing fact that [the wife] does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created to the goodwill, the charity, of the legal profession.”

Have a good, Brexit-free, weekend.

The post A week in family law – Non-Brexit Edition appeared first on Stowe Family Law.

Another fairly quiet week in family law. Perhaps there is something else going on. Whatever, I have found these three stories.

Firstly, as I reported here yesterday, new research published by the Nuffield Foundation argues that the proposal by the Ministry of Justice (‘MoJ’) for no-fault divorce is fully consistent with international trends. Indeed, the report finds there is an international trend away from requiring any ground at all. Sounds good to me. The report examines what lessons can be drawn from the experience of divorce law reform in eight comparable jurisdictions: Austrailia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden, and finds that there is an international trend towards recognition that a divorce must be granted where one of both parties insists that the marriage is over. The aim of the report is to explore how divorce procedures that are similar to that being proposed here work in practice in other jurisdictions, to inform the MoJ’s policy process as it unfolds. The MoJ says that it will announce how it intends to reform the legal requirements for divorce ‘very soon’, so whether the report will actually make any difference at this late stage is a moot point. Nevertheless, as I said, the report makes fascinating reading.

And next a little bit of good news, or so it would seem. It has been reported that the Government’s Troubled Families Programme has reduced the number of children in care. Troubled Families is a programme of targeted intervention for families with multiple problems, including crime, anti-social behaviour, truancy, unemployment, mental health problems and domestic abuse. Local authorities identify ‘troubled families’ in their area and usually assign a key worker to act as a single point of contact. Central Government pays local authorities by results for each family that meet set criteria or move into continuous employment. £448 million was allocated to the first phase of the programme, which ran from 2012 to 2015. Local authorities worked with around 120,000 families, and ‘turned around’ 99%. However the independent evaluation of the programme found no evidence that the programme had made any significant impact across its key objectives. The second phase of the programme was launched in 2015, with £920 million allocated to help an additional 400,000 families. The second phase will run until 2020. New analysis of the 2015-2020 programme in a report from the Ministry of Housing, Communities and Local Government suggests that the programme is cutting numbers of children in care by up to a third. The analysis compares families involved in the scheme to a control group which was not given the specialist help. The report states that: “The most striking finding is that the programme appears to have reduced the proportion of looked-after children”, adding: “2.5 per cent of the comparison group were looked after compared with 1.7 per cent of the programme group, a 32 per cent difference for this cohort at 19 to 24 months after joining the programme. The impact on those on the programme is likely to have huge benefits to children’s lives, contributes to managing children’s social care pressures and provides significant savings.” Whether all of this is as good as it sounds, I’m not sure.

And lastly, I have often wondered what makes anyone want to be a family court judge, in these days when the majority of litigants coming before them are unrepresented. No disrespect to litigants in person, but they must make the job of the judge more difficult, and at times more frustrating, particularly when the judicial workload is so high. It therefore comes as no surprise to see that a family court judge has been reprimanded by the Judicial Conduct Investigations Office (‘JCIO’) for speaking to an unrepresented party in a family case “in a sarcastic and condescending manner”, and banging her hand on her desk in frustration during a hearing. The judge expressed regret, but the JCIO decided that her behaviour “failed to demonstrate the standards expected of a judicial office holder”, and issued her with formal advice. Obviously there is no excuse for this behaviour, but perhaps we should spare a thought once in a while for the pressure that our judges are now having to work under.

Have a good weekend.

The post A week in family law: Divorce reform, troubled families and a judicial reprimand appeared first on Stowe Family Law.

These days the first point of call for basic legal knowledge for most people is, of course, the internet. The problem, though, is finding information that is accurate, and that you can therefore trust.

There is plenty of legal advice available on the internet, but comparatively few places where you can find detailed expositions of the law, similar to what you would find in a legal textbook. One such place is parliamentary research briefings.

The research briefings are produced by the House of Commons Library, the House of Lords Library and the Parliamentary Office of Science and Technology, and are primarily intended to get MPs and members of the Lords up to speed with topics with which they are not familiar (although reading or listening to parliamentary debates one sometimes wonders how many MPs actually read them!).

The briefings cover a huge range of subjects, including family law, and related matters.

As the briefings are not written solely for lawyers they are particularly useful for the general public. They are authoritative, clear, concise and fully referenced, including having many links to primary and other sources.

Here are a few examples that readers may find useful:

“No-fault divorce”, published last October, which “considers the current basis for divorce, arguments for and against the introduction of “no-fault” divorce, and the Government’s consultation paper, Reform of the legal requirements for divorce”. You can find a link to this briefing here.

Children: residence and contact court orders and related matters for parents, grandparents and others, published in November 2017, which “looks at child arrangements orders for residence and contact under the Children Act 1989.” Note that it still uses the old, and perhaps less confusing terminology ‘residence’! You can find a link to this briefing here.

Children: Enforcement of child arrangements orders relating to contact, published in June 2014, which “outlines the powers of enforcement available to the courts when a parent does not comply with a child arrangements order regulating contact.” You can find a link to this briefing here.

Financial provision when a relationship ends, published just last month, which “deals with the law in England and Wales and relates to the division of a couple’s property and income when their marriage or civil partnership breaks down.” You can find a link to this briefing here.

Child maintenance: income in the CMS formula (including why gross income is used, and annual reviews), published last December, which “sets out how the Child Maintenance Service (CMS) uses, collects and reviews the income of the non-resident parent under the 2012 statutory child maintenance scheme.” You can find a link to this briefing here.

“Common law marriage” and cohabitation, published in June last year, which “provides general information about how the law applies to cohabitants, the number of cohabiting couples, and about the Law Commission’s proposals for reform.” You can find a link to this briefing here.

And that is just a very small sample. All currently available research briefings are accessible from this page.

I suppose I should urge a note of caution for non-lawyers using the briefings. They may be very useful and informative, but they do not make you an expert. In particular, there is a huge difference between knowing the law and being able to apply it to a given set of circumstances. And trying to apply just a limited amount of law, as you will find in a briefing, can be especially dangerous. In short, there is no substitute for proper legal advice from a trained lawyer.

And on that note there is one other briefing that I would like to mention, that is definitely of direct use to non-lawyers. If you want to find legal help and advice, the House of Commons Library has produced a paper Legal help: where to go and how to pay, published in June last year, which “provides information about sources of legal help and advice, and how to pay for it”. You can find a link to this briefing here.

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It’s been a fairly quiet week for family law news, following the excitements of last week. Here are the highlights:

I’ll start with the latest figures for care applications and private law demand, for January 2019, which have been published by the Children and Family Court Advisory and Support Service (‘Cafcass’). In that month the service received a total of 1,051 new care applications. This figure is 10.2% (120 applications) lower than January 2018. As to private law demand, Cafcass received a total of 3,636 new cases during January 2019. This is 3.6% (127 cases) higher than January 2018, and third highest January on record. So once again we have better news on the public law front, but worse news in relation to private law.

Next there were three cases that made the headlines this week:

Firstly, a public law case that carries a message to anyone involved in any family proceedings, especially if they are not represented. A judge has been criticised by the Court of Appeal for ‘bullying’ a mother into agreeing to interim care orders for her two young children, against her wishes. Lord Justice Peter Jackson agreed with the mother that her consent or non-opposition to the interim care orders “was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements.” He went on: “Regardless of the fact that the mother was legally represented, she did not get a fair hearing.” Accordingly, the mother’s appeal against the orders was allowed. You can read the full report of the appeal here.

Secondly, a case that I wrote about here on Tuesday. A High Court judge has praised lawyers who act ‘pro bono’ (i.e. without charge), saying that: “So far removed from the stereotyped ‘fat-cat,’ the legal profession in cases such as this are more akin to Boxer in George Orwell’s ‘Animal Farm’ always telling themselves “I will work harder.” “Without such public-spirited lawyers”, asked Mr Justice Williams, “how would those such as the father and mother in this case navigate the process and present their cases?” He went on: “How judges manage to deliver justice to the parties and an appropriate judgment for the child without such assistance in cases like this begs the question. It is a blight on the current legal aid system that cases such as this do not attract public funding.” It is indeed a blight and, as I pointed out in my post, one that it seems the government is going to do little about, if its recent review of the effects of the legal aid cuts is anything to go by.

Thirdly, another public law case, this time with an unusual outcome. A court has ruled that a young girl whose parents cannot care for her should be brought up by a stranger, rather than her grandparents. District Judge Graham Keating decided that the girl, who was born in 2017, would be better placed in the care of a friend of the girl’s mother, rather than her father’s parents, despite the fact that the friend had never met the girl. Making a special guardianship order in favour of the woman, he said that although the strength of the blood relationship was “very powerful” it was “not definitive”. You can read the full judgment here.

And finally, it has been reported that a group of private backers has agreed to fund the problem-solving Family Drug and Alcohol Courts (‘FDACs’). For those who don’t know, FDACs are specialist courts that help parents deal with drug or alcohol addiction, so their children are not taken into care. FDACs have been extremely successful, with research indicating that families receiving FDAC are significantly more likely than families in standard care proceedings to be reunited with their children, and for the parents to have ceased misusing substances. Unfortunately, the national unit set up to support the courts shut down last year, due to lack of government funding. It has now been reported that a group of private backers and philanthropists has pledged £280,000 to fund a new national partnership to support and extend the model, and seek long term government funding. This is extremely welcome news, although it is an utterly remarkable (though sadly unsurprising) sign of the times that such a successful and highly regarded service should have to rely upon private funding for its existence. What next, judges with sponsorship on their gowns?

Have a good weekend.

The post A Week In Family Law: Cafcass figures, Three Cases, and more appeared first on Stowe Family Law.

“A ‘major disruption’ that affected multiple Ministry of Justice IT systems last week continues to cause chaos.”

So began a story in The Law Society Gazette on the 22^nd of January. The story went on to explain that the Gazette had been told by ‘lawyers on the front line’ that trials had been delayed, jurors had been unable to enrol, and practitioners had been prevented from confirming attendance at court that would enable them to get paid.

Despite not practising myself, I had already picked up on this story from irate lawyers on Twitter, bemoaning problems with court computers, phones (which of course are digital) and email systems. One well-known family lawyer tweeted:

“No diaries, no phones, no email, courts can’t receive documents or fix hearings…really causing problems for judges, court staff, lawyers – and of course litigants and witnesses.”

And another eminent (but anonymous) legal commentator tweeted:

“Imagine the headlines if it were the NHS.
“But it’s only justice, so no one cares.”

Certainly, I don’t recall these problems causing much of a splash in the national media.

And what did the Ministry of Justice, HM Courts and Tribunals Service (‘HMCTS’) et al have to say? Well, they at least were able to send out emails. I received a series of them, mainly apologising profusely to those who had been affected by what they called “major IT network issues”. “We know”, they said, “how deeply frustrating this has been for our staff and people who use and work across the justice system.” Hmm.

What they didn’t know was what caused the issues, but we were assured that they “were not the result of a cyber attack and there was no loss of data.” I’m not entirely sure that that is reassuring. It seems that their systems were quite capable of going into meltdown on their own, without any outside interference. At least if they had been hacked, that might have provided some excuse.

Whatever the cause, we were informed that:

“As of 25 January, all Ministry of Justice (MoJ) sites are operational with IT network connectivity restored. We are continuing to carefully monitor the situation and will work with individual users where any issues arise.”

Although there was one further word of warning:

“It will take time for all aspects of the service to fully return to normal, as there is a backlog of work created by the disruption.”

Hopefully, the cause of these issues will be found, and steps will be taken to ensure that the same problem will not occur again. It does not, however, inspire confidence. Many were suggesting that the system is not as robust as it should be, as it was acquired “on the cheap”. I don’t know the truth of that allegation, but we all know that government departments generally, and the MoJ and HMCTS in particular, have been subjected to tight budget constraints in recent years, so there may be some truth in it.

Whatever, in a time when much of the justice system is being put online (ostensibly to make it more convenient for users, but in reality primarily as a cost-cutting exercise), incidents such as this do appear to be a warning of things to come. These IT systems have the effect of putting all of the justice eggs in one basket. Whereas in the pre-digital age there was little that could adversely affect the entire justice system, now it seems that it only takes some small software glitch to bring the whole edifice to its knees.

And the victims will not just be lawyers. They will be those who use the system, including family litigants. And it will not just be some small inconvenience, like having to wait around a bit longer at court. It could mean justice seriously delayed, which could be the difference between a successful outcome to a case and an unsuccessful one.

Yes, it’s true that few people seem to care about IT issues in the justice system. But they certainly will care when it is their case that is affected: their divorce settlement that is delayed, or their children that they are unable to see.

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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.

These days the public are regularly being told “you don’t need a lawyer for that”. Just a couple of weeks ago I wrote here about a former police officer, Philip Kedge, who has set up a website linking the public with McKenzie friends and who claims that ‘family law does not need lawyers’. And it is not just those who seek a slice of the legal business pie who say such things. Last week the Ministry of Justice rolled out its online probate service, announcing that most people will no longer need to instruct a solicitor to deal with their probate matter.

Mr Kedge claims that things have changed. He says on his website that the “myth that ‘Family Law Needs Lawyers’ is now being exposed as more and more Litigants in Person empower themselves to take their own cases forward.” He says that: “The genie is finally out of the bottle and it isn’t going back in anytime soon.”

Similarly, the Ministry of Justice suggest that their new online systems, which of course include online divorce, are changing the legal landscape, doing away with the need for lawyers.

But has anything really changed? I don’t think that it has. It was always the case that the public could deal with simple legal matters without lawyers. And many people have always done so. Litigants in person are not a new phenomenon – I dealt with them throughout my career, which began in the early eighties, long before legal aid was abolished for most private law family matters.

When people choose to instruct a lawyer to deal with a simple matter they are essentially just paying someone else to do the work for them. That work may not be complicated, but it may be time-consuming, particularly for the lay person, who will obviously usually take far longer to deal with the matter than a lawyer – and everyone knows that time is money, particularly for those with busy lives.

The problem, of course, is that not all legal matters are simple, and matters that may seem simple to the lay person can be anything but.

Let us look for a moment at that probate example.

Yes, probate can be quite straightforward (albeit often time-consuming – I did a bit of it myself in the past, and it can be surprising just how many matters need to be dealt with even when administering a ‘simple’ estate), but it can also be very complicated, involved difficult legal concepts. The intestacy rules, for example, aren’t always straightforward (and they are likely to crop up regularly, as many people do not have a will). And even interpreting a will can throw up horrendous complications, especially if, as so often these days, the will is homemade. And how many non-lawyers have even heard of the probate-related rules of abatement, hotchpot or commorientes? (Google them if you want to know more.) Don’t be fooled by anyone into thinking that probate is always simple.

Dealing with complex legal matters without a lawyer is downright dangerous, and those who suggest it is not are guilty of doing the public a disservice. Remember, we may be dealing with a lot of money. With the probate example, it could relate to a large estate and even to a large Inheritance Tax bill. In the area of family law, we may be dealing with a substantial divorce settlement. Or we may be dealing with something far more important than money, such as the welfare of a child. In these cases the legal fees incurred by instructing a lawyer will usually pale into insignificance when compared to the value or importance of the matter being dealt with.

So yes, by all means deal with that straightforward matter without a lawyer, just as you always could. But just make sure that it really is straightforward. Might it not be worth the small investment in a modicum of legal advice to make sure it is? It could just save you an awful lot in the long run.

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