Discrimination, two new statutes and more

Family Law|February 24th 2017

A week in family law

A couple who had their one-week old child removed from them by the local authority while still in the hospital maternity ward had their human rights breached, the Family Court has held. The local authority, Kirklees Council, received a referral from the maternity ward which raised concerns about the parents’ parenting capacity. At a hearing in November 2015 the Council obtained an interim care order. The parents were neither present nor represented at the hearing, as the Council had not informed them of it. The child was returned to the parents in January 2016, and the case was subsequently dismissed. The Council admitted that the human rights of the parents and the child had been breached, and was ordered to pay £3,750 in damages to each of them.

Heterosexual couple Rebecca Steinfeld and Charles Keidan have had their appeal against a decision that they could not enter into a civil partnership because civil partnerships are only available to same-sex couples dismissed by the Court of Appeal. They had argued that the law was discriminatory. The Court of Appeal agreed that it was, but two of the three judges held that the discrimination was justified because the government was looking into changing the law, and needed more time to consider the matter. It has been reported that the couple intend to take the case to the Supreme Court. The case appears to have divided opinion, with some saying that civil partnerships should be open to all, and others saying that we should do away with them, now that marriage is available to both opposite- and same-sex couples.

There have been two major developments in the area of domestic violence this week. Firstly, Theresa May has announced plans for a programme of work leading towards bringing forward a Domestic Violence and Abuse Act. The programme will look at what more can be done to improve support for victims of domestic violence and abuse especially in the way the law, and legal procedures, currently work for such victims. Experts in the area will be invited to contribute ideas and proposals for improving the way the system works which is likely to lead to legislation – making it much easier for law enforcement bodies to find and use more consistently the measures at their disposal. The Prime Minister believes that the measures that come out of this work will raise public awareness of the problem, as well as encourage victims to report their abusers and see them brought to justice. All very good, although there is something I find a bit odd about the plans.

The second development is the announcement by Justice Secretary Liz Truss that the government is giving courts the power to put an end to domestic violence victims being quizzed by their alleged attackers in the family courts, calling time on what the Justice Secretary has described as a “humiliating and appalling” practice. The provision, which is contained in the Prisons and Courts Bill, follows an urgent review Ms Truss commissioned last month. I wondered whether money would be made available for alleged abusers to instruct lawyers to cross-examine the alleged victims, and a quick reading of section 47 provides the answer: the court may appoint a qualified legal representative to do the cross-examination, and the costs of the representative can be paid out of central funds. We must not, of course lose sight of the fact that alleged abusers have the right to defend themselves, and they are ‘innocent’ until the court finds otherwise.

And finally, I could not finish without repeating my best wishes to Marilyn Stowe for a long, happy and fulfilling ‘retirement’ from Stowe Family Law, whatever the new opportunities she decides to explore.

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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