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Family law news round up

Last summer saw the Supreme Court deliver a rash of big family law decisions (Owens (fault-based divorce), Mills (variation of maintenance), Keidan and Steinfeld (opposite-sex civil partnerships). As the countdown to summer 2019 begins, what’s big right now in the world of family law?

Brexit

The European election results took up much of the Bank Holiday Monday news with pundits poring over what the polls might mean for our exit from the EU (timing, terms, will it happen at all?). For family lawyers, these are highly uncertain times. A huge amount of our family law – particularly in the international context – has been shaped by our place in the Union and continues to regulate matters such as jurisdiction in divorce and the handling of child abduction disputes. It is hard to predict what quirks Brexit will deliver for cross-border family disputes and what future direction aspects of family law will take post-Brexit. If October 31 does end up being the day the UK leaves, watch out for possible unintended consequences where court action is commenced on or around exit day.

Court transparency review

The family court will always have to grapple with the conflict between protecting the privacy of children and vulnerable adults and allowing an appropriate level of scrutiny of the courts to give the public confidence that justice is being done. In his most recent bulletin, Sir Andrew McFarlane, President of the Family Division, announced a review of transparency in the family court, expressly “to consider whether the current degree of openness should be extended, rather than reduced”.

This is a really hard subject and one that has become all the harder with the diversification of information sources away from so-called mainstream media.  When the courts first opened up to the media in 2009, Twitter was a relatively new phenomenon for most people and no one was talking about the dangers of sharing “fake news”. The President does seem to “get” the importance of transparency but his service as a senior judge will teach him that transparency at all costs is not the right answer. People involved in the family court need their privacy to be protected.

Domestic abuse review

The government this month announced a three-month review into domestic abuse in the context of proceedings in the family court. Minister Paul Maynard said:

“This review will help us better understand victims’ experiences of the system, and make sure the family court is never used to coerce or re-traumatise those who have been abused. Its findings will be used to inform next steps so we can build on the raft of measures we have already introduced to protect victims of domestic abuse.”

A recent focus on this issue on the BBC’s Victoria Derbyshire Programme has heightened public awareness. Questions have been raised as to whether the review is enough. Former President of the Family Division, Sir James Munby, has called for an independent academic investigation into the issue.

This links very closely with the issue of transparency. It is everyone’s concern if issues of domestic abuse are not being handled appropriately in the courts. However, to fully assess whether this is in fact happening and if so, the scale of the problem, anecdotal accounts are not enough; court paperwork showing how evidence was gathered and assessed requires analysis. That cannot simply be subject to unfiltered public scrutiny because of the need to preserve privacy. We’ll see what comes up following the review but it seems unlikely that any piece of work undertaken in three months will be sufficient.

Legal aid concerns

Another linked issue is the effect on the family courts of the large scale withdrawal of legal aid in family cases back in 2013. Former High Court Judges, Sir Paul Coleridge, Sir Hugh Bennett, and Sir David Bodey amongst others have lately gone public about the impact of these cuts on the workload of the family court, which have pushed the justice system to breaking point. Parents are increasingly facing each other with no legal advice on either side, putting the onus on the courts to enable them to make their cases. This was widely predicted but the courts went ahead anyway. This impacts on all court users as it increases the length of time taken to reach final decisions. Will the three-month domestic abuse review join the dots…?

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