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What’s in store for family law in 2018?

With the holiday season now upon us, Holly Tootill, a senior associate in the family department at JMW, takes a look into her metaphorical crystal ball and considers some of the family law trends we might be seeing in a brand new shiny 2018

Single parent surrogacy on the horizon?

As my colleague blogged last week, the government has sent a draft “remedial order” to Parliament, dealing with the problems faced by single applicants looking to become a child’s legal parent after a successful surrogacy arrangement.

Currently, only couples (gay, straight, married or unmarried) can apply for a parental order which enables them to be recognised as a child’s legal parents following conception and birth via surrogacy. A remedial order is a fast-track procedure to reform the law where it is incompatible with human rights legislation. Back in 2016 the High Court declared that this situation was discriminating against single applicants. Hopefully this long-overdue reform will make it onto the statute books next year.

Owens in the Supreme Court

There has been real interest in the prospect of the Owens divorce case being heard by the Supreme Court next year. You will remember that Mrs Owens sought a divorce from her husband on the grounds of his unreasonable behaviour. Mr Owens took the highly unusual step of defending the divorce and, because the examples of his unreasonable behaviour were not seen as sufficiently severe to grant a divorce in the face of his opposition, the couple remain married, though separated. The Court of Appeal upheld this decision, saying “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be”.

Supported by the solicitors’ family law organisation, Resolution, Mrs Owens is appealing to the Supreme Court. Only Parliament can bring about a fundamental change in the law but the comments of the Supreme Court, even if the appeal is dismissed, could be highly influential in framing the debate in future.

On that note, can we look forward to a reformed system enabling no-fault divorce?

Probably not. Despite the appearance of various private members bills seeking to change the law to allow for no-fault divorce without a two-year wait, the government confirmed in February 2017 that it had “no current plans to change the existing law on divorce”. Family lawyers will keep up the pressure and – depending on how the Owens appeal goes – could the government be persuaded to change their stance? We’ll have to wait and see.

Covert recording

This has become an increasing feature of child residence and contact disputes with the court regularly being furnished with video evidence which it may or may not rule admissible. Once the province of swashbuckling undercover journalists, creating high-quality undercover video footage or audio is now possible for anyone with a smartphone, with or without the knowledge of those captured on camera. The situation has become so pressing that the outgoing President of the Family Division, James Munby, has asked the Family Justice Council to produce a report. This should set the tone for future court rules on the subject, (hopefully!) providing much-needed guidance on how such recordings may be treated by judges and enabling us to advise our clients on the consequences of capturing them.

Dare we say it out loud? What about Brexit and family law?

Your guess is as good as mine…