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PSL Essential Update - Fleshy February 2016

Date:29 FEB 2016
Given that the start of the year usually goes off at full speed, February can be the month where things plateau. You might grab a moment to ease off the accelerator to enjoy the delights of Pancake Day and see the New Year's resolve fade softly away as you stop going to the gym (guilty as charged...). However, on the Family Law frontier, the developments keep coming. This month we've seen updates to orders, new regulations and consultation papers - it's got some meat on its bones, so this month is Fleshy February.

Hungry for more

In January, the President announced there would be updates to the private law orders, as those produced in conjunction with the Child Arrangements Programme were not thought to be making life easier (as was the intention) for Litigants in Person. With the help of AdviceNow, the new drafts were made simpler and more concise, and these were circulated in a Judicial Template for judges and justices' legal advisers and also in tick box form for everyone else to use.

The orders come in three sections: allocation and gatekeeping, case management directions, section 8 and other orders, and finally enforcement. Since this announcement there have been two sets of amends to the forms the first of which tackled minor amends and produced Welsh versions to accommodate the differences in relation to activity directions: the most recent correcting a reference to jurisdiction. All the latest developments and the forms can be found here.

CPD starved

The Family Law Updates have been in full swing this month, but there are still a few remaining sessions left to go in Manchester, London and Exeter.

The updates are delivered by three expert speakers in each location (including a judge, a finance specialist and a children specialist), who take us through the key practice areas plus the latest on financial remedies, public and private children law and all things procedural, as well as a range of need-to-know hot topics.

There is also the ever popular Pensions on Divorce seminar, which couldn't be timelier with all the forthcoming pension changes in April.

If you can't make it, keep an eye out for helpful tips from each event by following @JordansFamLaw on Twitter and using #famlawupdate.

Sharing platter

With cohabitation becoming the fastest-growing relationship type in the UK, the Commons Library has published a briefing paper providing general information about the number of cohabiting couples, how the law applies to cohabitants and the Law Commission's proposals for reform.

The Law Commission recommended the introduction of a new statutory scheme of financial relief on separation, based on the contributions made to the relationship by the parties. The recommendations have yet to be taken forward. The paper sets out information about how the law affects cohabiting couples on a range of issues including their property rights, housing, domestic violence, inheritance, pensions and parental responsibility. It also addresses the myth of the common law marriage.

The recent successful court application of Joy Williams, who faced losing her home after her long-term partner died, leaving his estranged wife to claim a half-share of her house, highlights the difficulties cohabitants can find themselves in. For further discussion on inheritance rights for cohabitants, see here.

Hard to digest

Minister for the Courts and Legal Aid, Shailesh Vara, announced on 11 February that, in accordance with its commitment to modernising the delivery of justice, the government would be closing 86 of the originally proposed 91 courts. On average these 86 courts are reported to be used less than 2 days a week, and it was maintained that over 97% of citizens would still be able to reach their required court within an hour by car.

Accepting the court closures were difficult decisions; Mr Vara said:

'Changes to the estate are vital if we are to modernise a system which everybody accepts is unwieldy, inefficient, slow, expensive to maintain and unduly bureaucratic.'

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Appetite for arbitration

Arbitration has again been given the seal of approval by the family courts, as seen in the case of DB v DLJ [2016] EWHC 324 (Fam). Mostyn J allowed a husband's application for a wife to show cause as to why an arbitration award should not be made into an order. He also provided procedural guidance so that, in the future, any challenge of an arbitration award would be heard by a High Court judge at the earliest opportunity.

This follows on from the President's practice guidance on Arbitration in the Family Court, which was released in November 2015. The guidance can be downloaded here.

In addition, DB v DLJ provides a discussion of Barder, unforeseeability and mistake, together with a comparison of civil arbitration and family arbitration and the difference between them: it is worth a read. See also the excellent article by Alexander Chandler, 'Challenging an arbitral award: DB v DLJ [2016] EWHC 324 (Fam)' for more details.

Specials board

The Special Guardianship (Amendment) Regulations 2016 were published at the start of the month and amended the Schedule to the Special Guardianship Regulations (2005), which outline the matters to be dealt with in Local Authority reports in Special Guardianship applications.

The regulations make changes requiring the reports to deal with any harm and future risk of harm to the child, and ensures both the child's current and future needs are covered in the report. There is a more detailed provision requiring an assessment of the nature of the child's relationship with the prospective special guardian and relating to their parenting capacity.

3 for 2 Suprême

The Supreme Court has allowed an appeal in a 3:2 majority by a non-biological mother of a child, holding that the unilateral removal of the child to Pakistan by her biological mother did not cause her to lose her English habitual residence, and, accordingly, the English court retained full jurisdiction to make decisions about her welfare.

The decision has been hailed as demonstrating that England has embraced modern international concepts, focusing on the position of the child in such cases and showing a willingness by the court to make orders about British nationals who are resident overseas.

Speaking of 3 for 2 - check out our special sale on selected Family Law titles!

In other news...

See below for a list of at-a-glance headlines of important items and articles you might have missed:

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