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The Family Court Practice 2019: An introduction

Date:17 JUN 2019
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FCPThe Family Court Practice (Red Book) brings you expert commentary on the latest case-law, full coverage of new and amended legislation, Practice Directions and guidance. It also contains scores of unique step-by-step procedural guides, which direct you effortlessly  to the relevant rules and annotation.

‘Indispensable. It is the single book that every family practitioner and every family judge must have’ Sir James Munby

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Subscribers might consider that 2018 was not a notable year for family law. Brexit uncertainty, to which this Introduction referred in the last edition, has continued to dog practitioners, the courts and the legislature, with confusion escalating in the weeks leading up to publication. As the proposed withdrawal legislation cuts a swathe through developing statutory and regulatory provisions with which family lawyers have lived for some 40 years, consequential procedural amendments are necessary. Step forward the Family Procedure Rules 2010 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019. The normally helpful explanatory notes found at the end of such instruments as this, here state blandly that the amendments are to ‘address failures of retained EU law to operate effectively and other deficiencies (in particular paragraph g of section 8(2)) arising from the withdrawal of the United Kingdom from the European Union’, thus leaving practitioners to hunt for the ‘deficiencies’ or, more likely, to come face to face with the ‘failures’ at entirely the wrong moment. 
A glance at the legal press only adds to the gloom. Practitioners may find it difficult to reconcile the apparently cheerful (‘the UK will be ready for a no deal Brexit in family law’) with the anxious (‘Family Lawyers in the dark where Brexit will take them’) headlines which appeared in parallel coverage in Family Law Week in the first week of March 2019. 
Of course, once practitioners know where they stand, appropriate advice can be given and a recognisable procedure can be engaged. It is the uncertainty of direction and outcome which is causing practitioners such anxiety. Having held back our publication date as long as we can, we have concluded that (provided that the uncertainty does not continue beyond October 2019) we should be able to assist subscribers with a clear road map in our Autumn Supplement. 
The ‘common law marriage’ remains at best a glib assumption by opposite-sex couples that an enduring relationship which is not officially recognised is nonetheless recognised by society, and at worst a disguise by a controlling partner, hiding from his (or her) vulnerable ‘wife’ or ‘husband’ that upon separation there is none of the security or financial remedies offered by matrimonial legislation. Furthermore, some 3 million opposite-sex cohabiting couples are still unable to enter into a civil partnership in the way available to a smaller number of same-sex couples, to the bewilderment of many and in the face of both logic and the acknowledgement, in the summer of 2018, by the Supreme Court in Steinfeld and Keidan v Secretary of State for International Development that the situation is at odds with human rights legislation. However, while the Government Equalities Office has suggested that it requires further research and does not expect to consult on the ‘future operation’ of civil partnerships until 2020, there has been some movement. The Civil Partnership, Marriages and Deaths (Registrations Etc) Act 2019 received Royal Assent shortly before this Edition went to press. Subject to the provision of the necessary regulations, by the end of 2019, legislation will enable heterosexual partners to form civil partnerships.
And with commendable speed, following on from Owens, it appears that at least the ‘grounds’ of divorce are to be overhauled. Having lagged behind Scotland (where a year’s separation has been sufficient to prove irretrievable breakdown of marriage for some time), the government proposes an even speedier, and blame-free, outcome. The impact on marriages, let alone divorce (already, it appears that 42% of marriages are likely to fail), remains to be seen. 
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The Ministry of Justice is not immune from the spending constraints imposed by scarce government resources. One unexpected casualty is the country’s biggest regional divorce centre, which is plagued by record delays. Petitions lodged at Bury St Edmunds take well over a year, on average, to be concluded. Whether a reduction in staffing was the cause or a coincidence, only recently has recruitment been restored. In family hearing centres across the country, HMCTS is struggling to replace staff, and there is anxiety that judicial appointments are not keeping pace with vacancies. The court modernisation programme, with accompanying digitalisation, has been encouraged by both the MoJ and the highest levels of judiciary, but has stumbled in its onward march. Computer ‘crashes’ across the estate brought courts to a halt in February and again in March 2019, coinciding uncomfortably with the government announcement that the completion of a £1 billion court modernisation programme, which seeks to introduce increased digital working, has been delayed and will not be completed until 2023. 
And then there are the children. Both the legal and the popular press report anxiously on the inexorable rise in both public and private law applications. It appears that 133 out of 152 local authorities exceeded their children’s social care budgets by more than £800m in 2018 as government data revealed 75,420 children to be ‘looked after’, a rise of 4% on the previous year. In 2008, the figure was 60,000. In 2018, two local authorities effectively declared themselves to be insolvent. They are unlikely to be alone. 
Between April 2017 and March 2018, Cafcass recorded a total of 14,224 applications for care orders. In 2014, the figure was 11,159, followed by desperately worrying rises in each of the following years of 5%, 15% and 14%. A modest fall in the first quarter of 2018 cannot disguise the overall increase in care applications of over 27%. There has been no accompanying rise in the resources available to accommodate them, either in local authority budget availability or in judicial recruitment, causing the President to express grave concern over the impact on court staff and judiciary. 
One way to address the drain on resources is perhaps to steer private law disputes away from the court, thus reducing delay, confrontation and the impact on children of their parents’ anxiety and frustration at their inability to reach an outcome. In the face of a continued rise in private law disputes coming before the Court – 129,000 in 2015, 132,000 in 2016 and 138,500 in 2017 – there is much to be said for early intervention and conciliation. But as the President has remarked, this was recognised more than a decade ago, and since then endeavours represented by SPIPs and MIAMS appear to have been unable to stem the tide. 
Another, and proven, way to lessen the strain on resources in the public law arena has been found in FDACs (it is a tribute to the late Nicholas Crichton that his name is synonymous with the acronym). The national unit, which has helped to establish a dozen such FDACs, covering 15 local authorities, a service which was originally jointly paid for by the MoJ and the Department of Health, has faced repeated funding uncertainties. As the past President pointed out, it has been shown that FDACs have recorded outcomes which can be measured not only in successfully reuniting children within hitherto dysfunctional families, but also in savings to the public purse. However, as 2018 drew to a close, it was announced that funding was to be brought to an end. It is a source of great relief that in February 2019 it was revealed that the unit has been saved by a group of private backers and philanthropists. This will, it is hoped, enable more local authorities to sign up to the endeavour. 
It might be comforting to see philanthropists plug one gap, but anxiety is being expressed at the increasing presence of McKenzie Friends where funding is unavailable or unaffordable. From entirely laudable beginnings an industry is emerging, charging for its assistance, which is unregulated, unqualified and uninsured. Judicial consultation appears to have concluded that dissatisfaction requires action by government rather than piecemeal, by individual Courts. Until then, the current guidance continues. 
And while adults experience life-changing disputes, their children, unable to shelter from the crossfire, emerge as casualties, frequently unable to cope with the consequences of their parents’ failings. Yet the National Audit Office has reported that only 25 per cent of children with a diagnosable mental health condition receive treatment or counselling. Missed ‘targets’ at Accident and Emergency departments populate headlines when there is a flu epidemic, while the public remain oblivious to the waiting times for children and adults alike to access mental health services which stretch into years. Sir James Munby’s anxiety at the plight of a child in Re X, and the lack of a facility in which to accommodate her (to which this Introduction referred in 2018), still resonates, and observers might hope that as austerity is loosened, a way might be found for the government to consider supporting services for children and perhaps diverting central funds to beleaguered social care departments. 
Save where commentaries expressly take account of subsequent developments, the law is stated as at 1 March 2019. Our Supplement, normally published in November, may well be brought forward to encompass procedural and legislative changes brought about by Brexit – if, and when, it has been concluded. 
His Honour Judge Anthony Cleary, April 2019