No fault divorce, litigants in person and more

Family Law | 2 Dec 2016 3

A week in family law

I will begin with a story that is actually from last week, but which I overlooked in my weekly roundup last Friday. It is important because it shows how people can get the ‘wrong end of the stick’ when it comes to news of developments in family law. It was reported by The Guardian that parents of transgender children fear that their former partners will seek residence orders in respect of their children, following the decision of Mr Justice Hayden in Re J (A Minor) to remove from his mother’s care a seven-year-old boy who was “living life entirely as a girl”. The charity Mermaids, which campaigns for the recognition of gender dysphoria in young people, says that four mothers of transgender children have said their ex-partners have threatened to take them to court in the wake of the ruling. In fact, the boy in the case was not transgender. Mr Justice Hayden found that the mother had developed an unhealthily close relationship with him, perceiving him as gender dysphoric or presenting him as transgender, when he was not. It is therefore quite wrong to believe that the case indicates that transgender children will be removed from their parents.

This week the Court of Protection has been hearing a rare application relating to the withdrawal of medical treatment from a patient with depleted consciousness. The patient, former policeman Paul Briggs, was riding his motorbike to work in July 2015 when he was hit by a car that was being driven on the wrong side of the road. Since then he has been in a minimally conscious state on clinically assisted nutrition and hydration, and some doctors believe he could live for another nine or ten years in this state. His family, however, argue that this would not accord with his sense of independence and dignity, and his wife has applied for the treatment to be withdrawn. The hospital where Briggs is a patient has opposed the application, saying his condition could improve, but a doctor for the family has diagnosed him as being in a permanent vegetative state. Mr Justice Charles will decide whether withdrawal of treatment would be in his best interests.

Resolution, the association of family lawyers, has been busy this week. On Monday they launched a new Code of Practice, setting out how Resolution members should approach their work. Resolution, which represents 6,500 family justice professionals who are committed to supporting couples to reach constructive solutions to family disputes, says that the new Code reflects the changing family justice environment, although I wonder whether it may have passed its sell-by date. Meanwhile, on Wednesday 150 Resolution members met with MPs in Westminster to promote their campaign for no fault divorce. Whilst I fully support the campaign, I fear that it may fall on deaf ears. Resolution speak about putting pressure on the government to introduce no fault divorce, but I seriously doubt that anyone in the government is going to feel under much, if any, pressure. There is also an argument that the family justice system faces rather more pressing issues at this time than divorce reform.

On which subject the Lord Chief Justice, Lord Thomas of Cwmgiedd, has expressed concern over the number of litigants in person involved in private family law disputes.

Speaking at his annual press conference, he said:

“What is beginning to emerge – and we need to study this in much more detail – is the withdrawal of legal aid is causing a problem in resolving disputes between the father and mother over children. There is some evidence the problem is being exacerbated [by litigants in person].”

He also expressed concern that McKenzie friends who charge for their work were giving legal advice that was wrong and were “preying on vulnerable people”.

He said that:

“There is a real risk of exploitation or of giving advice the person wants to hear, not advice that they do not want to hear.”

Sadly, Lord Thomas stopped short of calling for the reintroduction of legal aid to support cases involving disputes over children.

And finally, the most important family law story of the week, which for some unfathomable reason has not made it to the pages of this august blog (at least not yet as I write this) is the one about the Chinese husband who is divorcing his wife because of her smelly feet.  Sounds to me like grounds for a divorce for either spouse in any marriage…

Have a good weekend.

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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    1. Nigel Shephed says:

      Thanks for this excellent round-up John. Just two thoughts if I may.

      First, you’re right that any respectable family lawyer would agree whole-heartedly with the new Resolution Code of Practice. The support for the revised version was overwhelming from our members and many others. However, I don’t agree that the Code is past its sell-by date. It remains central to the way we approach our work and a crucially important benchmark for the albeit increasingly marginalised band of family practitioners who don’t adhere to its principles.

      Secondly, we were delighted with the support for no fault divorce we got from the many MPs who joined Resolution members in Westminster on Wednesday. I am more optimistic than I’ve been for years that there might actually now be the political will to get this long overdue change through Parliament – #abetterway!

      Keep up the good work!

      Nigel Shepherd
      Chair, Resolution
      Head of Family Law, Mills & Reeve LLP

      • John Bolch says:

        Thanks for taking the time to comment Nigel.

        I’m glad to hear that at least the band of family practitioners who don’t adhere to the principles of the Code are becoming increasingly marginalised!

        As for no fault divorce, I hope your optimism is justified.

        I shall try to keep up the good work. I’m sure you will too.



    2. Mr Christian JARVIS says:

      I wish to draw to your attention that not only is it a lack of legal aid, but also a lack of confidence in professionals to act in the interests of their clients that are causing more people to act as litigants in person. Greed appears to have taken over the interests of justice, especially in the civil areas of law.

      When I was a client of a rival legal firm, I was informed their was something going on called “horse trading” in my own case, I sacked my legal team and litigated myself going on to assist others and indeed have notable case law under my belt with regard to this, which cannot be helpful to anyone in your profession.

      I understand that there are many of you that are very good at your jobs and are loyal to your clients, and it is from this point of view that I would ask the good people like yourselves to be mindful of what I have written here with a view of rooting out the bad apples amongst the legal profession yourselves as bad news travels fast, and even quicker with the internet whereby many facebook groups are now set up with a view of sharing knowledge amongst litigants in person.

      People in the judicial system appear to have forgotten that “not only must Justice be done; it must also be seen to be done”.

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