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IFLG's response to the FPRC's Consultation

Date:11 MAR 2021

The International Family Law Group LLP’s response to the FPRC's Consultation in relation to draft changes to the Family Procedure Rules arising from planned implementation of the Divorce, Dissolution and Separation Act 2020

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Introduction

This paper is the response of The International Family Law Group LLP (iFLG) to the consultation of the Family Procedure Rules Committee (FPRC) in relation to the draft changes to the Family Procedure Rules (“FPR”) arising from planned implementation of the Divorce, Dissolution and Separation Act 2020.   

Since it was founded in 2007, iFLG has specialised in cases with an international element.  iFLG has been involved in some of the leading reported decisions on a wide range of international issues.  The firm is regularly instructed and consulted by lawyers around the world, particularly in relation to international family law issues. 

We have focused our response to this consultation on the issues which arise from an international or technological perspective as we have distinctive knowledge, involvement and expertise in international issues and digital developments.  iFLG Partner David Hodson OBE has also been involved in the Law Society’s response to the consultation.  

The primary author of this Response is iFLG Partner Michael Allum who has received contributions from fellow iFLG Partners Stuart Clark and David Hodson OBE.  Further details are in the appendix.        

Response

Question 1: Do you consider that there are any grounds other than those set out at r.7.1(3)(b) which should be included in the definition of “disputed case” for matrimonial and civil partnership proceedings?

Yes.  We are of the view that a case should also be treated as ‘disputed’ where the respondent asserts that there are competing proceedings in another jurisdiction and the balance of fairness is such that it would be appropriate for the proceedings in that jurisdiction to be disposed of before any further steps are taken in the English proceedings.  
It is appreciated that the Committee has considered (paragraph 21 of the consultation paper) whether to treat a stay application as a ‘disputed’ case and decided not to do so on the basis the court would expect the respondent to have made an application pursuant to Paragraph 9 of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973.  That may be the case where the respondent is represented by international family law specialists, but it is submitted it would be hard to expect a litigant in person to make such an application.  
In the context of the courts being faced with an ever-increasing number of litigants in person and the continued drive to make the family justice system as transparent and accessible as possible, it is submitted that the existence of competing proceedings in another jurisdiction should also be treated as a ‘disputed’ case.  

It is our view that this would also reduce the volume of formal applications required so as to ensure an issue is properly before the court which would be a positive development.    

Question 2: Do you consider the proposal that a postal notice which notifies the respondent that service has taken place by email (amended r.6.4 and new r.6.7A) would provide a sufficient safeguard in respect of email service?

Yes, we do consider that postal notice would provide a sufficient safeguard.  We do not however consider that it would constitute a proportionate safeguard.  It is our view (as explained in response to Question 3 below) that it would be disproportionate and contrary to the drive towards a fully digitalised process and should be avoided.   

Question 3: If you answered “no” to Question 2, do you consider further safeguards might be necessary?  If so, please explain.  

It is appreciated that there may be a concern by some that service by email alone may not be sufficient.  With increased security against spam and fraudulent emails, an increasing number of emails are now caught in junk/spam folders.  This inevitably sometimes includes “innocent” emails which the recipient would have wished to receive.  There may also be perceived issues with not everyone checking emails with the same regularity with which they would check post.

On the other hand, in an increasingly international and technological world, there are many who would now check emails more regularly and carefully than post.  Many people increasingly have more than one accommodation.  This has been particularly evident with the mass migration out of the cities during lockdown.  People who travel for a living or as part of their job are likely to be away often.  Hence post to one address is unreliable.    

Moreover, it should also be possible for emails sent from the court service’s email account to be formatted in such a way that they would avoid being picked up by email filters.  One of the contributors to this Response assisted the online divorce project and sits on the Family Court Users Association and is not aware of any problems with emails sent by HMCTS not being received by recipients.  It is our view that this should be checked with the HMCTS tech development team who we understand are working towards ensuring that emails sent by HMCTS are not picked up in spam filters. 

Furthermore, we would be concerned that to require postal notification would be no more than a sideways step in what should be a leap towards embracing a digitalised divorce process.  It would arguably make the process more arduous as the applicant would in effect be required to contact the respondent by both post and email. 

If the Committee is in favour of having an ancillary notice process (alongside service by email) we would encourage that consideration be given to allowing notification by text message or similar e.g., WhatsApp.  This is what many companies and banks are already doing with two factor authentication; they will send an alert via text message alongside an email or upon login.  It is submitted that this would not only be more proportionate and in line with the move towards a digitalised divorce process, but in the vast majority of cases also more effective at meeting its purpose namely notifying the respondent to divorce proceedings that they have been sent important documents by email. 

We are mindful that safeguards will need to be put in place in the event there are issues of domestic or other abuse but feel this could be addressed by the option for the court to arrange service/notification, particularly as it is being proposed that this will become the default position.  Moreover, these considerations are no different to the considerations which the court now need to bear in mind with postal service.  Fraud and coercion are also risks with the current postal service method (e.g., the Italian divorce scandal of a few years back – Rapisarda v Colladon (Irregular Divorces) [2014] EWFC 35). 

Our view is therefore that service by email should be permitted as an absolute right with no qualification.  If there is to be a separate notification process, then it should be via text message or similar.  If there is any suspicion that the email has not gone through in the context of the lack of an acknowledgement of service, the court can direct alternative methods of service as occurs at present. 

Question 6: Do you consider that there would be any specific issue that may arise in relation to service outside the jurisdiction if the proposed 28-day time limit on an applicant taking the required step to serve outside the jurisdiction at new r.6.41A is imposed?  Please explain your reasons.

Based on the proposed rules, all the applicants will need to do is lodge an application for service abroad within 28 days, 4 weeks (r6.46(2)).  In reality that will then sit in the court office for another 2-4 weeks (being conservative) before being sent to the Foreign Process Unit.  The FPU are quick and so let us say they process in 1-2 weeks.  Then over to their counterpart.  We are already 10 weeks in to the 20 weeks.  With the best will in the world, many central service authorities are just not quick enough. Anecdotally, many countries take over a year.  As a result, there would be extreme prejudice to the respondent who may not receive the application before the date of the conditional order.

The new r.7.10(5) will be key.  There must be safeguards.  Applicants must not only show that they did what they are required to do under 6.46(2), but that the respondent has received the application.

Consideration should be given as to whether applicants should be required to serve by the r.6.45 method (where applicable) and via another means permitted by the law of the country in which the respondent is being served.  This has been best practice for most international specialists for a long time.  It means the applicant can satisfy the requirement to serve via the appropriate authorities (on which some countries e.g., Germany place great importance) whilst also ensuring that the respondent is served within a reasonable timeframe. 

If just the FPU is used, there is no way it can be undertaken in a 20-week time period.  What it would mean is that once the person is served e.g., after 30 weeks, the petitioner could apply immediately for the conditional order and therefore the amount of time received by an international recipient will be minimal.  We are of the view this will have adverse criticism from abroad.  The respondent having negligible time is far more likely in the international context.  We feel we have a duty on behalf of international clients to point out that this will be very badly received around the world.  

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