Family Law

Reform is a now a feature of the family justice system – Geraldine Morris asks whether the underlying issues are being addressed?

Divorce

Many leading cases on divorce procedure are decades old, a consequence of the cost of litigation and perhaps also a more ‘relaxed’ approach to the law by the courts, but the decision in Owens v Owens [2017] EWCA Civ 182, [2017] All ER (D) 23 (Apr) highlighted that the generally accepted practice of ‘mild’ particulars in unreasonable behavior petitions does not in fact comply with the law. The Court of Appeal confirmed that the test in s 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973) is an objective/subjective hybrid, with the objective element to be addressed by reference to ‘the man or woman on the Boris Bus with their Oyster Card in 2017’. The wife’s appeal was dismissed by the Court of Appeal ‘with no enthusiasm whatsoever’, and the matter will be heard by the Supreme Court in 2018 following the grant of permission to appeal in August 2017. Family lawyer organisation Resolution continues its long-running campaign for no fault divorce, which has received some political but not governmental support. 

In a surprisingly busy year for divorce procedure, a new practice direction, FPR 2010, PD 36D, was issued setting out a divorce pilot scheme for certain applications to be filed via an online process, and a new more litigant-friendly divorce petition was introduced. Also, following a consultation launched by the Family Procedure Rule Committee, a new process of administratively de-linking financial proceedings from divorce proceedings was rolled out across England and Wales in June 2017.

Cohabitants

This is an area of family law where there are frequent calls for change (most recently via Resolution's Cohabitation Awareness Week, and the early day motion of Caroline Lucas MP), but despite a succession of Cohabitation Rights Bills, little progress has been made. It seems unlikely that there will be further developments in what is likely to be a packed legislative programme in 2018. Regarding case law, the Privy Council decision in Marr v Collie [2017] UKPC 17, [2017] 2 FLR 674 highlighted the importance of context as to the intentions of the parties. 

Financial provision

Although of limited interest in the vast majority of cases, the Court of Appeal rejected an argument as to a ‘special contribution’ in Work v Grey [2017] EWCA Civ 270, [2017] 2 FLR 1297. Of wider interest is the decision in Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 where the court was concerned with an application by the wife to be released from an undertaking linked to a property adjustment order, with the Supreme Court finding that it could deal with the wife’s application under both the inherent jurisdiction and MCA 1973, s 31.

On the procedural front, for those dealing with cases in the Principal Registry of the Family Division (PRFD), Baker J issued a note in October 2017 as to the allocation of appeals from PRFD district judges. In addition, Family Procedure Rules 2010 (FPR 2010) (SI 2010/2955), 9.15, was amended to provide that all cases should be referred for a financial dispute resolution appointment, save in specified circumstances.

Public children

As ever, 2017 was case law heavy on the public children front with the courts continuing to struggle with both the volume of cases, lack of resource and, in some cases, litigants in person. In November 2017 the Ministry of Justice issued guidance in relation to cases where there may be issues as to the potential manipulation of forensic toxicology results where the testing was undertaken by Trimega Laboratories Limited, and a new Form C650 for applications to be made in that regard. This raises the question of how such reviews will be resourced and funded, and the obligation placed on already stretched local authorities to review all relevant cases.

From 27 November 2017 a new FPR 2010, Pt 3A came into force, accompanied by a new PD 3AA, as to the participation of, and giving of evidence by, vulnerable parties (including children) in family proceedings. The culmination of many years of consultations and discussion, while provision for the appointment of an intermediary for example is a welcome development, detail as to resourcing is notably absent.    

Settlement conferences continue to be piloted, and this initiative is likely to develop further in 2018.

Private children

In relation to private children, the new FPR 2010, Pt 3A and PD 3AA, together with settlement conferences, are relevant. In addition, 2017 saw the introduction of a new PD 12J as to domestic abuse and harm within proceedings for child arrangements and contact orders.

The role of the judiciary in these challenging times is developing. In Re A (Letter to a Young  Person) [2017] EWFC 48, [2017] All ER (D) 200 (Jul), Jackson J (as he then was) handed down his decision as a signed letter to the teenage boy whose residence was at issue. Interestingly, HHJ Stephen Wildblood QC gave a lengthy interview published in Buzzfeed in October 2017, as part of his efforts to help the growing number of litigants in person, a step that surely would have been unimaginable only a few years ago and provided very welcome insight into the family justice system for those outside it.

Conclusion

In 2018 the President of the Family Division, Sir James Munby, will retire, having overseen a programme of change he described in 2014 as ‘the largest reform of the family justice system any of us have seen or will see in our professional lifetimes’.   Between 2014 and 2017 reform has been a permanent feature for family lawyers. Might we expect the new President to effect more change? In the current climate that seems likely, and although it merits more than a passing mention, the impact of Brexit looms over all of us:  the title of this article is a deliberate reference to both the deeply embedded inter-relationship between EU and domestic family law, and the ongoing challenges faced where reforms so often seem to be undermined by a lack of appropriate resource so as to truly implement change.