31 Oct 2017

A report from a leading thinktank adds fuel to calls for a root-and-branch reform of divorce law.

According to the Nuffield Foundation’s Finding Fault?   Divorce Law and Practice in England and Wales, divorce petitions are “best viewed as a narrative produced to secure a legal divorce. They are not - as a lay person might suppose they should be - an accurate reflection of why the marriage broke down and who was ‘to blame’ "'. 

Only 29% of those surveyed told researchers the reason cited in their fault-based divorce petition closely matched the reason for separating. 

The report observes: “What might be regarded as stretching of the truth in such cases is not confined to behaviour petitions. Adultery can be falsely claimed and admitted. Dates of separation may also be massaged to shorten wait times in two- and five-year separation cases.

“The manipulation of facts is now more routine and prosaic than the staged or bogus ‘hotel adulteries’ with strangers of the 1930s, but it remains an issue.”

Interest groups – Resolution amongst them - have campaigned for the reform of divorce law, and the introduction of no-fault divorce.  Instead, Resolution proposes a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably.  The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.

But it appears the current government has no appetite for family law reform.  Commenting on a 2014 Law Commission report on fundamental reforms to marriage law, the Justice Minister said: “now is not the right time to undertake further work on such a fundamental reform”.  In his letter to the Law Commission of September 2017, Dominic Raab said the family justice system “is under significant pressure at present from a sustained increase in public and private law cases”, which the government is trying to alleviate.

According to Raab, “… we need to focus on reforms in this area of the system in order to meet the unprecedented increases in demand. Any opportunities for primary legislation will need to support that aim.”

So, it looks as if divorcing couples will need to endure the charade surrounding fault-based petitions for a while still.

26 Oct 2017

The President of the Family Division has invited the Family Justice Council to consider the question of using covert recording of conversations in family proceedings.

The Judge was dealing with the case of Re B, which concerned an eleven-year-old girl.  B’s father alleged deliberate alienation by the mother and sought to rely on recordings he had covertly made with a social worker, a Cafcass reporter and a solicitor.

Giving judgment, the President invited interested bodies to make written submissions on the use of covert recordings in family cases.

He made several preliminary observations about covert recording [§9 to 16]:

• The issue had recently become more pressing with, with increasing sophistication and miniaturisation of modern recording equipment, coupled with a widespread distrust by some of the competence / integrity of the family justice system and its professionals;

​

• Although that distrust was often based in a mindset, as opposed to reality, there had been recent and shocking examples of professional malpractice which had been revealed only because of the covert recording of the relevant individual [§12];

​

• There was a distinction between open recording and covert recording; the latter being more problematic. There were at least three categories of covert recording: (a) of children; (b) of family members; and (c) of professionals [§13]. All involved different issues;

​

• With each nature of recording arose questions of: (a) the lawfulness of the recording; (b) best practice outside of the courtroom; (c) the admissibility of the recording into evidence; and (d) other evidential and practice issues (for example, disputes about authenticity, or the quality of the recording, etc.). [§14];

​

• The questions of who was doing the recording and why might well be relevant too [§15].

The President considered the issue was too nuanced to set out sweeping statements of general principle in a judgment, and instead identified the need for a more detailed and multidisciplinary analysis of the rules of admissibility.

25 Oct 2017

Many family lawyers avoid disputes about the child maintenance scheme, finding the law and procedure for calculating child maintenance too complex and technical.  If legally trained experts struggle, it must be truly daunting for parents involved in such disputes to successfully navigate the process!

The House of Commons Library has just published two extremely useful briefing notes about the 2012 statutory child maintenance scheme.  These are extremely useful, and provide valuable guidance on the scheme’s operation.

The first of the briefing notes describes how the Child Maintenance Service calculates the amount of maintenance payable.

The second briefing note sets out the rules on variations to the 2012 scheme – on what grounds a variation may be sought, how one goes about requesting a variation.  It also details further sources of information and help about variations.

Both notes are clearly written and come highly recommended to any parent dealing with the Child Maintenance Service.

11 Jun 2017

Research undertaken by the Universities of Cardiff and Bristol sheds new light on the quality of help and support paid McKenzie Friends offer to litigants in family proceedings. 

​

A study of fee-charging McKenzie Friends and their work in private family law cases by legal academics Leanne Smith (Cardiff University), Emma Hitchings (University of Bristol) and Mark Sefton (independent legal researcher) reports evidence of a growing body of “redirected professionals”, that is, qualified lawyers switching from traditional legal practice to unregulated McKenzie Friend work.

​

Among the McKenzie Friends in the study, the report observed there was evidence of a strong orientation towards settling cases outside court.

​

Clients interviewed for the study were on the whole extremely positive about their experiences of using a McKenzie Friend.  They reported high levels of trust in their McKenzie Friends and indicated the services they had purchased were far cheaper than those of a solicitor (almost all had used solicitors prior to contacting a McKenzie Friend).

Commenting on their research findings, Doctors Leanne Smith and Emma Hitchings said: “We found much that was positive about the work of paid McKenzie Friends. This is the first research to explore the views of clients of McKenzie Friends and those we spoke to reported receiving a great deal of valuable support from their McKenzie Friends at a relatively low cost.  We also found that many McKenzie Friends are keen to engage in relevant education and training and that many have sufficient knowledge and experience to improve the ability of litigants to manage their own cases”.

24 May 2017

Developing on the decision in the case of Stack -v- Dowden, the Privy Council determined the correct legal test to be applied in deciding the beneficial ownership of certain property following the breakdown of a relationship between an unmarried couple

20 May 2017

Various international treaties and arrangements are relevant in family law cases.  These treaties enable, for example, decisions made in one country to be recognised and enforced in another.

​

Several treaties apply to child maintenance.  These enable a parent with a UK child maintenance decision to apply abroad to have the order enforced or changed.  This is done, for example, where the person liable to pay maintenance under the decision lives overseas. 

​

The Official Solicitor's office has published an updated list of countries where parents can apply to enforce or change a child maintenance decision made in UK courts.