02 FEB 2017

PSL Essential Update – January 2017

PSL Essential Update – January 2017
This month’s PSL roundup of the top stories for January 2017 sees indications of some fairly big (and keenly anticipated) changes on the horizon:

Vulnerable people

Although this news was really triggered at the very end of 2016 it is worthy of note in this January re-cap, not least because it has been raised again later in January.

On 30 December 2016, Sir James Munby, President of the Family Division, issued a statement on cross-examination of vulnerable people. He said:

'I have expressed particular concern about the fact that alleged perpetrators are able to cross-examine their alleged victims, something that, as family judges have been pointing out for many years, would not be permitted in a criminal court. Reform is required as a matter of priority. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers. I am disappointed by how slow the response to these issues has been and welcome the continuing efforts by Women’s Aid to bring these important matters to wider public attention.'

At that stage, the President indicated that he would consider the review of PD12J which had been undertaken by Cobb J and would make any decisions early in the New Year.

The President has subsequently issued a further ‘View from the President’s Chambers’ dealing with the matter …

President’s View and Review of Practice Direction

The President’s 16th View from the President’s Chambers entitled ‘Children and vulnerable witnesses – where are we?’, was released in January in conjunction with a report from Cobb J reviewing and proposing a draft revised Practice Direction 12J FPR 2010 – Child Arrangement and Contact Orders: Domestic Violence and Harm.

The President’s View focused on the evolution of attempts made to change the current position in which vulnerable witnesses and children can find themselves when faced with giving evidence in the family court. It reiterated that primary legislation was required to address the situation whereby, following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), alleged perpetrators of abuse could be left with no option but to cross-examine their alleged victims and vice versa.

The President also urged practitioners and all involved in the family justice system to read Cobb J’s report in full. The recommendations fall into two parts: One relates to the proposed amendments to PD12J, the other deals with a number of the other issues raised by Women’s Aid in their report ‘Nineteen Child Homicides’ published this month, and those raised by the All-Party Parliamentary Group (APPG) on Domestic Violence back in April 2016.

The President’s View and the report by Cobb J are considered in detail by our PSL Amy Sanders in her ‘PSL Essential Update’ of 20 January on the issue.

Practice Guidance

In January the President also revised the guidance for the Family Court on the duration of ex parte (without notice) orders.

The new guidance clarifies the guidance issued in 2014 and confirms, amongst other things, that a without notice order must never be made without a fixed end date and time. Careful consideration should be given to the duration of any without notice order and the return date should normally be no more than 14 days after the date when the order was made.

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Digital divorce 

This has been another hot topic for January 2017.  The suggestion that ‘online divorce’ would be available in England and Wales within the next 6 months was widely reported in the press. 

In late January, the Family Procedure Rules Practice Direction 36D entitled 'Pilot Scheme: Procedure for Using an Online System to Generate Applications in  Certain Proceedings for a Matrimonial Order' was released, It marked the launch of the first small online divorce pilot designed for certain applications which meet the criteria.

The scheme applies where:

(a) the application is for a matrimonial order which is a decree of divorce made under section 1 of the 1973 Act;

(b) access to the online system for making such applications is permitted;

(c) all stages of the process provided for in the online system can be fully completed;

(d) the application is started in the family court; and

 (e) the application is filed in the period commencing 25 January 2017 and ending 28 July 2017.

The scheme will allow new practices and procedures to be tested within an online system which generates the application. The Practice Direction includes modifications to the Family Procedure Rules which will apply during operation of the scheme.

Cafcass request

A letter from Cafcass was circulated in early January with a view to clarifying best practice arrangements where referral to a Domestic Violence Perpetrator Programme (DVPP) is intended.

The letter addressed the difficulties faced when a DVPP to be delivered by a provider commissioned by Cafcass is included in a final order. The making of a final order closes the case for Cafcass, resulting in Cafcass then being unable to monitor the DVPP and report back to the court. It also leaves them at odds with the DVPP providers as Cafcass is required to stay involved while the programme is being carried out.

Cafcass recommends that, in such circumstances, an Activity Direction should be made (rather than an Activity Condition) in relation to all DVPP referrals, with a clear order allowing Cafcass to remain involved in the case and to work with the court to ensure a safe outcome of the DVPP is factored into the long-term plan for the child. Without a case remaining open, Cafcass may receive mid-way reports from providers of DVPP but would not have the authority or a channel through which to inform the court about progress or any problems.

A template of the proposed Activity Direction is available here.

Help for children and young people

Coram’s Child Law Advice Service launched a new website in January, aiming to help children and young people to find out about their rights. Funded by The Queen’s Trust, the new website, www.lawstuff.org.uk, provides information about children’s rights in areas such as Children’s Services, Home & Family, Police & Law, and My rights.

Young people who have specific enquiries which are not covered on the LawStuff site can also go to www.childlawadvice.org.uk to find relevant contact details.

Gemma Smith, manager of the Child Law Advice Service (CLAS) said “it is extremely important that children and young people know that they have rights which are respected and protected in law. Knowing that they have rights can boost a child or young person’s confidence. It lets them know that they are valued whilst also helping them to respect the rights of others.”

In other news …

MOJ publishes report on implementation of Law Commission proposals

Family Mediation Week highlights £48 billion cost of family breakdown to the taxpayer as charity calls for mediation

Foster carer left with no support for 6 years following dispute with local authority over placement

New care applications received by Cafcass in December 2016 decrease 3%

Private law cases received by Cafcass in December 2016 increase by 1%

Bristol launches new scheme to help litigants in person

Sixteen new family law silks appointed

Case - Babiarz v Poland (Application No 1955/10)

Case - Kacper Nowakowski v Poland (Application No 32407/13)

Practice Guidance - The Official Solicitor to the Senior Courts: Appointment in Family Proceedings and Proceedings under the Inherent Jurisdiction in Relation to Adults

Article - Are we getting closer to no fault divorce?

Article - Non-matrimonial property and sharing: Scatliffe v Scatliffe [2016] UKPC 36

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