A personal review of the year, part 2

Family Law|December 21st 2017

This continues my personal review of 2017. (The first part, covering the January to April, can be found in my post here yesterday).

May: crazy

  • My story choices for May are all about finances, the first two both about the extraordinary sums of money divorcing couples are prepared to spend arguing over who has what. One story reported: ‘Judge condemns ‘crazy’ couple for spending £1.5m in £10m divorce battle’, and the other: ‘Judge blasts ‘astonishing’ £2.7m legal fees in millionaire’s divorce battle’. Sadly, such headlines seem to have little or no effect upon subsequent users of our family courts…
  • Further judicial condemnation came from Mr Justice Mostyn in Green v Adams, although this time the target was the child support maintenance rules, which allowed a millionaire to pay just £7 a week in child support, because he was living on his capital, with very little income. This is the sort of nonsense you encounter with a rigid, formula-based system, rather than a discretionary system, as used by the courts to deal with financial issues.
  • Lastly in May the President called for the de-linking of divorce and money claims, so that they are started and pursued by completely separate processes. This, of course, is part of the process whereby financial remedy claims will soon be dealt with by separate specialist financial remedy courts. Brave new world.

June: inevitable

  • On the 7th of June I wrote here: “I suppose it was inevitable. It has been reported that divorce petitions based upon ‘unreasonable behaviour’ are being drafted with far more acrimonious allegations [in order not to be rejected by the courts], following the Court of Appeal’s decision in Owen v Owens in March this year.” Sigh…
  • In one of the most important decisions of the year the Court of Appeal held that the application of the equal ‘sharing principle’ is unfair in short marriages. In Sharp v Sharp an award of 50 per cent of the capital to the husband after a short childless marriage was reduced by the court, on the basis that the capital brought into the marriage by the wife was substantially more than that brought in by the husband.
  • The conduct of a paid McKenzie friend was described by a judge as ‘utterly inconceivable’, after the MF was excluded from a family court dispute. For the remarkable details of this case, see this post. Another example of the problems of unqualified and unregulated legal ‘assistance’.

July: presidential

  • The north/south divide in this country was illustrated by a study which revealed that children in the north of England are 70 per cent more likely to be involved in care proceedings.
  • In an echo of the profits made by the Child Maintenance Service from fees (see January), new figures revealed that HM Courts and Tribunals Service (HMCTS) was raking in a whopping £100 million surplus, as new higher court fees added up. A tax on litigants.
  • It was announced that Lady Hale was to be appointed the next President of the Supreme Court. The first woman to take that role and, more importantly, a family lawyer!
  • In not so good news, further Family Court closures were announced by HMCTS, with another seven courts being added to the ever-growing list.
  • Research published jointly by Women’s Aid and Cafcass found that 62 per cent of applications relating to where a child should live or spend time involved domestic abuse as a risk factor. As I said at the time, not entirely surprising, given that legal aid is now only available where domestic abuse is alleged.
  • Mr Justice Peter Jackson was strongly praised for writing a personal letter to a teenager, explaining the reasons for his decision affecting the child. Expect more of the same in future.

August: inadequate

  • In August we heard that lawyers were warning that a new DIY divorce form could lead to more adultery accusations, because it includes a box ‘inviting’ people to ‘name and shame’ adulterers. This is really more a problem of lack of legal advice, rather than poor form design – a lawyer would obviously explain when it is necessary to fill in the box.
  • HMCTS proudly announced that it has invested £80,000 in victim and witness waiting rooms in five courts across the country, to “make the experience of victims and witnesses easier”. Sounds great, but it doesn’t sit very well with a tweet I saw only the other day from a lawyer, bemoaning the state of the court he had been in that day. Sadly, I can’t find the tweet, but I do remember him saying that (amongst other things) the lavatory next to the courtroom wasn’t working. Perhaps that money should be invested in repairs, before new facilities.
  • And lastly for this part of this review, confirmation of a point I made under January yesterday: in a foreword to the latest edition of the legal guide The Family Court without a Lawyer – A Handbook for Litigants in Person, the President said that the government’s support for litigants in person in the family courts has been “sadly inadequate” up until now. Quite. Having taken away legal aid for so many, surely the government had a responsibility to help those it left fending for themselves. Unfortunately, it has abrogated that responsibility.

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