Wednesday, December 26, 2012

Seventeen things that happened this year...

Agricultural calendar from a manuscript of Pietro Crescenzi, written c. 1306. Image: Marcel Douwe Dekker

1. Sir Paul climbs back on his hobby-horse
Four dinosaurs
To coincide with 'Divorce Day' in January, Sir Paul Coleridge announced that he was launching a foundation "to defend marriage and reduce of the "scourge of society" of family breakdown". The Marriage Foundation was actually launched on the 1st of May, with patrons including the three wise Baronesses: former President of the Family Division Baroness Butler-Sloss, chairman of the Bar Standards Board Baroness Deech and lawyer to the rich and famous Baroness Shackleton. It didn't go down well with me (see image), and I wasn't the only one - it led to Sir Paul being investigated by the Office for Judicial Complaints, following a complaint that his neutrality as a judge could be compromised. He was cleared of misconduct, but promised to take a “lower profile” position, although from the news today, "lower profile" clearly does not preclude him from criticising the Government's same-sex marriage plan.

2. Government Response to the Family Justice Review
In February the Government published its Response to the Family Justice Review. The majority of the Review's recommendations were accepted, in full. One notable exception was the recommendation that no legislation should be introduced that 'creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents', more of which later in this post. A recommendation that the Government should establish a separate review of financial orders to include examination of the law was rejected, on the basis that the Law Commission's project looking at matrimonial agreements would be extended to look at the issues of matrimonial property and needs. More also on that later.

3. Debating Family Law Arbitration
Family law arbitration became a reality in February, with the launch of the Institute of Family Law Arbitrators. The launch provoked a debate about the enforceability of arbitration awards. As I said at the time, my view is that the award would only be binding once approved by the court and incorporated into a consent order. All of this may, however, be fairly academic if people don't use arbitration - in September I was informed that uptake was 'very sluggish', and in an attempt to kick-start the use of the process, virtually all IFLA accredited arbitrators offered to take on 'appropriate cases' for a maximum fee of £1,500 plus disbursements, provided the arbitration was commenced before the end of October.

4. Adoption Action Plan published
In March the Government published its 'Action Plan for Adoption', which set out "to overhaul the system for prospective adopters and strengthen the performance regime for local authorities". We would hear much more of the Government's plans for adoption through the year, culminating in the announcement on Christmas Eve (!) of "a new package of support for people who want to adopt to ensure more children get a stable, loving home without delays". The package appears to have been generally well received.

5. S (a Child): Supreme Court unanimously allows mother's appeal
Also in March, the Supreme Court allowed the mother's appeal in S (a Child). The issue was the approach that the court ought to take to summary applications under the Hague Convention when Article 13(b) is engaged. The High Court refused to order the child's return to Australia, finding that the exception provided for by Article 13(b) was engaged and satisfied. The Court of Appeal reversed that decision and ordered the child's return. The Supreme Court unanimously reversed the decision of the Court of Appeal, and restored the order of Mr Justice Charles in the High Court. The judgment was welcomed by the child abduction charity Reunite, which was permitted to intervene in the proceedings.

6. Fancy a 'Gateway conversation'?
Skipping a few months, in July the Government published a policy document launching a consultation upon the draft regulations for the new child maintenance system. The policy document set out 'key improvements' to the child maintenance system, but the headline-grabbing aspect of the new plans was the penalty charges for failure to pay. As for the above heading, if you want to use the new 'Child Maintenance Service', then you will have to go through a 'Gateway'. However, it will not be satisfactory to describe the help that you will then get from the Service as 'advice'. Instead, we are to be saddled with the particularly absurd expression 'Gateway conversation' to describe the process whereby they explain your options to you.

7. Re W (Children): The responsibilities of parents
The case of Re W (Children) [2012] EWCA Civ 999, decided on the 24th of July, involved a father's successful appeal against the dismissal of his application for direct contact with his daughters. However, it was the postscript to the judgment of Lord Justice McFarlane (left) which caught the eye. In it, he reminded us that: "statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency". As I said at the time, this should be compulsory reading for all parents involved in disputes over the arrangements for their children.

8. Re S (A Child): Residence and the controlling father
Re S (A Child) [2012] EWCA Civ 1031, also decided on the 24th of July, demonstrated aspects of children disputes with which all family law professionals will be familiar. The case involved a father's appeal against a residence order in favour of the mother on the grounds, inter alia, that the judge had been biased against him. The Court of Appeal dismissed his appeal. Giving the leading judgment, Sir Mark Potter (right) found that the judge's finding "that the father's motivations were not simply his devotion to [the child] but a determination to dominate and control the mother" was not open to review by the Court of Appeal.

9. Mr Justice Ryder’s report on Modernisation of Family Justice published
At the end of July Mr Justice Ryder's final report on the Family Justice Modernisation Programme was published. Key points related to the single family court, good practice materials, case management and assisting self-represented litigants, the last point taking on particular urgency, with the impending removal of legal aid in most private law cases. The implementation of the modernisation programme has since begun, with the first 'Implementation Update' being published in December, and will continue under the overall direction of the new President of the Family Division, Lord Justice Munby.

10. Re K (Children): How not to conduct yourself when faced with care proceedings
Re K (Children) [2012] EWCA Civ 1169 concerned an application by the mother and stepfather for permission to appeal against an interim care order removing the child from their care and placing him with the maternal grandparents, and a special guardianship order made in favour of the maternal grandparents. The application was granted, but neither the mother nor the stepfather helped themselves by the way they behaved, both with regard to the investigation by social services and the court proceedings, taking it upon themselves to choose when they should cooperate with social services, and when they should attend court, withdrawing from engagement in the process when they considered that it was going against them. Another judgment that should be compulsory reading, this time for anyone facing the possibility of having their children taken into care.

11. Draft legislation on Family Justice published for Pre-Legislative Scrutiny
In September the Department for Education and the Ministry of Justice published for 'pre-legislative scrutiny' draft legislation on Family Justice, introducing changes to the operation of the family justice system, as recommended by the Family Justice Review and accepted by the Government in its response published in February (see paragraph 2 above). The main provisions included putting in place a maximum 26 week time limit for the completion of care and supervision proceedings, the replacement of residence and contact orders by a 'child arrangements order' and the repeal of section 41 of the Matrimonial Causes Act. (As to the 'shared parenting' provision, see paragraph 15 below.)

12. Matrimonial Property, Needs and Agreements consultation opens
As also mentioned in paragraph 2 above, the Law Commission's Matrimonial Property, Needs and Agreements consultation opened in September. The consultation is supplementary to the Marital Property Agreements consultation and considers two aspects of the law relating to the financial consequences of divorce and of the dissolution of civil partnership:
(1) the law relating to financial needs on divorce and dissolution; and
(2) the legal status of “non-matrimonial property”.
It has been suggested that the Commission will recommend the adoption of formulaic guidelines for spousal maintenance, similar to those used in Canada. We shall see.

13. M (Children): Use of a conditional residence order where contact obstructed
M (Children) [2012] EWHC 1948 (Fam), involved the making of a conditional residence order in favour of the father, in circumstances where the mother had been obstructing contact. The case concerned the father's application for residence in respect of two boys, aged 10 and 8. Hearing the case, Mr Justice Jackson (right) did not accept the mother's contention that she had done everything she could to comply with contact orders. He considered that the father's application for a residence order should succeed, but decided to allow the mother one final opportunity. He therefore directed that the order would not come into effect if staying contact was resumed (as defined).

14. Prest: A "cheat's charter"?
The much-anticipated judgment in Petrodel Resources Ltd & Ors v Prest & Ors [2012] EWCA Civ 1395 was handed down by the Court of Appeal in October. Briefly, the background was that in October last year Mr Justice Moylan awarded the wife £17.5 million in settlement of her financial remedy claim. In view of the husband's appalling litigation misconduct, he ordered that companies owned and controlled by him (which Moylan J found the husband had used to try to defeat the wife's claims) transfer certain assets to the wife, in part payment. The companies appealed, and the Court of Appeal allowed the appeal, by a majority. Lord Justice Rimer (pictured) made it clear that section 24(1)(a) MCA did not enable the court to treat a company's property as belonging to its 100% owner. The ruling has been called a "cheat's charter" by divorce lawyers, who fear that it will be used by wealthy husbands to avoid their liabilities to their families. The case is to be heard by the Supreme Court.

15. New shared parenting provision published, but will it make any difference?
In November the Government published a draft clause to be inserted into section 1 of the Children Act, to give effect to the 'shared parenting' presumption that the welfare of the child will be furthered by involvement in the child's upbringing of each parent. The Government also published an explanatory note which included a 'process map' explaining how the presumption is expected to fit with the decision making process. All very interesting, although whether the presumption will make any difference to outcomes is not so clear (it is, however, likely to increase the amount of argument).

16. Help for separating parents at their fingertips as new web app launches
The government's big new idea, which will at a stroke solve all the problems caused by lack of funding, in particular for legal aid. The 'Sorting out separation' hub, launched in November, is "an easy-to-use web app, ... featuring an innovative and interactive tool, which offers parents personalised advice and shows where they can access further support". As to how useful the 'hub' will be, see this review by Lucy Reed over on Pink Tape.

17. In the matter of A (A Child): Appeal dismissed
Lastly, in December the Supreme Court handed down judgment in In the matter of A (A Child). The issue was whether disclosure of the identity of the accuser and substance of allegations of serious sexual abuse made by a third party ('X') should be disclosed to parties involved in contact proceedings relating to a child. In this case, the Supreme Court unanimously held that it should, Lady Hale (pictured) saying that: "The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X."

[Please note that this is a personal selection of some of the more interesting things that happened in family law this year based, obviously, on posts I wrote/published. It is not intended as a definitive list of the most important news items/cases - I'm sure others may consider that other items should have been included in any such list.]

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