A personal review of the year, part 3

Family Law|December 22nd 2017

This concludes my personal review of 2017. (The first two parts, covering January to August, can be found here and here).

September: disruptive

  • In a sign both of the times and of the enormous responsibilities placed upon our family courts, a headline in The Telegraph on the 7 September read: “Returning jihadis will end up in family courts, Lord Chief Justice warns”. I’ll say no more about this, other than to wonder whether our family court judges are paid enough…
  • In another example of a bad McKenzie friend (yes, there are some very good ones), a district judge felt compelled to exclude a McKenzie friend from his courtroom, over a “tirade” against him and solicitors. How many more examples of poor unqualified legal advisers will be required before the government realises that the public needs some protection from them, by requiring them to be properly trained, regulated and, preferably, insured?
  • And on the subject of litigants without lawyers, new figures from the Ministry of Justice showed that neither the applicant nor respondent were represented in 36 per cent of private law case disposals between April and June this year, prompting calls for the government to re-introduce legal aid, even if just for initial advice. It’s not going to happen though.

October: confrontational

  • A small but important practical point that crops up regularly for family lawyers: Mr Justice Mostyn confirmed in the case CH v WH that the family court has power to order an indemnity in respect of mortgage liability. I remember when I was practising years ago it was thought that the court could not order one party to indemnify the other against liability under a mortgage when the property is transferred to the first party, a situation that was quite unsatisfactory. Good to have this clarified at last!
  • In an all too frequent example of the mainstream media getting the wrong end of the stick in order to make a good headline, we heard that a white Christian girl had been placed in the care of a Muslim foster family who spoke only Arabic. In fact, it subsequently turned out that the husband spoke English and that the girl had a good relationship with the carers. Just shows that you can’t trust everything you read in the papers…
  • Divorce law in England and Wales increases conflict and suffering for separating couples and their children, encourages dishonesty, and undermines the aims of the family justice system”. So said the Nuffield Foundation, after publishing research showing that divorce law in England and Wales is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce. Yep. As I said at the time: Surely, the calls for no-fault divorce are now too loud to ignore?

November: alienating

  • Another headline: “Divorced women are missing out on £5bn in pension payments every year, says Scottish Widows”. Yes, this is not surprising. The message is clear: get the best advice you can on your pension entitlement following divorce.
  • The Office for National Statistics published figures showing that cohabiting couple families are on the rise, and were now the second largest family type, and the fastest growing, comprising some 3.3 million families. It is a disgrace that so many people have no property rights when their relationships break down.
  • Don’t abandon separating families in Brexit, say legal groups” ran a headline from Resolution, the association of family lawyers. I don’t like to use the ‘B-word’, but there are some important family law issues that need to be resolved before we leave the EU. For details, see this paper, published by Resolution, the Family Law Bar Association and the International Academy of Family Lawyers.
  • It was announced that Cafcass was trialling a new approach to parental alienation, which could result in parents losing their children if they try to turn them against the other parent. I set out a few of my initial thoughts on this, in this post.
  • Still with Cafcass, the service published research in November which showed that 30 per cent of private law cases have been to court before. As I said at the time: “The only thing I find surprising about this sad statistic is that the fraction is not larger – if a family is unable to sort out arrangements for children without going to court, then they are unlikely to be able to manage future arrangements without further court intervention.”

December: predictable

  • The President made the expected announcement that specialist Financial Remedy Courts were to be piloted. The pilots will take place in three places, starting in February 2018. Lawyers generally welcomed the announcement, saying that the courts should lead to ‘greater predictability’ of outcomes in financial cases, thereby making it easier to predict those outcomes, and therefore settle more cases. Let us hope so.
  • The latest legal aid statistics revealed that the number of Mediation Information and Assessment Meetings (MIAMs) between July and September was down 5 per cent on the previous year. As I have said in relation to figures from the previous quarter, I find the figures grimly amusing – for the reasons, see the first paragraph of this post.
  • And finally, I was pleased to see the headline “Magistrates Say Children Suffer In Family Court Hearings When Their Parents Have No Lawyers” just the other day. As I said here on Monday: Lawyers are good for children.

And that concludes my personal review of the year, which ended up somewhat longer than I originally anticipated. It’s just so difficult to decide what to leave out…

Have a great Xmas and New Year.

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. Andrew says:

    “It is a disgrace that so many people have no property rights when their relationships break down.”

    Yes they have. They have the right to retain what is their property. Different to the rights people have whose marriages break down, but they they have chosen not to marry, haven’t they?

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