A week in family law: unbundling, media access and more

Family Law|Industry News|November 20th 2015

The main theme of the family law news this week has been ‘signs of the times’…

Solicitors instructed on a limited retainer do not have a broader duty of care to their clients, the Court of Appeal has ruled. The ruling came in Minkin v Lesley Landsberg, in which a wife agreed a financial settlement with her husband and then instructed solicitors to draw up a consent order. An order was drawn up, and approved by the court. The wife then came to regret having entered into the consent order and blamed the solicitors for their lack of advice, which had resulted in the consent order being made. In those circumstances, she commenced proceedings against the solicitors for negligence. The court found that the solicitors had acted under a limited retainer to embody the matters agreed between the husband and the wife in a consent order which the court would approve. The retainer did not extend to advising the wife upon the merits of the agreement and accordingly, the solicitors were not negligent. The wife appealed, but the Court of Appeal agreed with the judge’s findings and dismissed the appeal. The ruling will come as good news to solicitors who offer limited or ‘unbundled’ services, something that has become more common since legal aid was abolished for most private law family matters.

Transparency is a byword of the times. In an interesting development, a pilot scheme is to begin in January to allow the public and media greater access to Court of Protection hearings. With rare exceptions, such as serious medical cases, Court of Protection hearings have usually been in private with only those directly involved in the case attending. The pilot will reverse this approach and the Court will normally direct that its hearings will be in public and make an anonymity order to protect the people involved. The scheme will provide evidence to assess whether the Court should in future hold its hearings in private or in public and whether access should be given to the media but not the public. Of course, whether allowing greater access to the Court actually improves public understand of what the Court does is another matter – a point I made here just this week.

The Office for National Statistics has published a bulletin presenting statistics on live births in England and Wales in 2014 by characteristics of the parents. The statistics indicate that marriage or civil partnership remains the most common family setting for births in England and Wales as a whole, despite the steady fall in the percentage of births registered to married couples since the 1960s. In 2014 just over half of births occurred within marriage or civil partnership (53 per cent), compared with 58 per cent in 2004 and 93 per cent in 1964. The proportion of births registered to cohabiting parents has increased in recent years with 32 per cent of all births being registered to cohabiting parents in 2014, compared with 27 per cent in 2004 and 10 per cent in 1986, the first year these figures were available. Overall, 84 per cent of births in 2014 were to parents who were married, in a civil partnership or cohabiting. Of the remainder, a further 10 per cent of births were registered jointly by parents living at separate addresses, while only 5.4 per cent were registered by the mother alone. All in all, a further demonstration of the decline in marriage.

And finally, another sign of the times, albeit from abroad: the Californian case of the woman who was not allowed to use her frozen embryos because she and her husband agreed to discard the embryos if they were to ever divorce. As mentioned in the post here about the story, the case has similarities to the Natalie Evans case over here. Hard though it is, the outcome must surely be correct: if you agree to discard the embryos should you divorce, and you do divorce, then the agreement must be honoured.

Have a good weekend.

Photo by Jon Hathaway via Flickr

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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