Legal aid cuts, a Supreme Court judgment and more

Family Law|February 16th 2018

A week in family law

I begin with further evidence, as if it were needed, of the appalling effect of the legal aid cuts of 2013, implemented by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). A new report by the charity Coram Children’s Legal Centre, entitled Rights without remedies: Legal aid and access to justice for children, has found that since the cuts thousands of children and families have been left without access to free legal advice and representation in many areas of civil law. Coram say that without funding for legal advice or representation children have been left without a home, without legal status, excluded from education and separated from their family. The report finds that the removal of most of family, immigration and education law from the scope of legal aid has caused thousands of miscarriages of justice that have led to the breakup of families, the costly and often unlawful exclusion of children from education, and widespread destitution and exploitation among migrant families. Let us just hope that the report comes to the attention of the Government’s review of the effects of LASPO.

Moving on, an updated list of countries where parents can apply to enforce or change a child maintenance decision made in UK courts has been published by the Official Solicitor. This is very useful – where a non-resident parent lives abroad, the parent with care can apply to a court in this country for a maintenance order, and if the order is not paid the parent with care can apply for the reciprocal enforcement of the maintenance order if the country where the non-resident parent is residing is a reciprocating country on the list.

The Supreme Court has given its judgment in In the matter of C (Children). I won’t go into the details of the judgment (you can read a summary of the judgment here), but would like to say a couple of things about what their Lordships said. Firstly, I think it must be right that there can be a ‘repudiatory retention’ by the parent with the children – i.e. the wrongful retention of the children in the new country can happen before the end of a stay agreed with the other parent, if the parent with the children decides not to return the children at the end of that stay. To say that there can’t be a repudiatory retention gives an unfair advantage to the parent who is going to breach the agreement, so that they can make plans to keep the children in the new country. It would also be artificial to say that the agreement is still in place, when clearly one parent intends to breach it. The second, and obvious, point is that, like Lords Kerr and Wilson, I find it really hard to see that the mother didn’t intend to retain the children in November 2015, when she applied for British citizenship for them – if she did then that was the point when the repudiatory retention took place. Crucially, by then the children would probably not have been habitually resident in this country, in which case the Hague Convention would have applied.

Cafcass has published its latest figures for care applications and private law demand, for January 2018. In that month the service received a total of 1,168 care applications. This figure represents a 3 per cent increase in comparison with January 2017, and is the highest monthly total for a January on record. As to private law demand, Cafcass received a total of 3,590 new private law cases. This is an 11 per cent increase compared with those received in January 2017. In the current financial year, Cafcass has received 35,437 new private law cases. This compares with 33,387 received in the same period a year ago and represents a 6 per cent rise. After a few fluctuations, the trend for both sets of figures is once again clearly upwards. Extremely worrying.

And finally, I would just like to mention an excellent initiative by Emma Newman, the Managing Partner at Stowe Family Law’s Esher Office, and Mette Theilmann from the parenting support company Parenting Success. Together they run both a Separated Mums’ and a Separated Dads’ Group. As Emma says: “Going from parenting together to parenting apart is a huge step.  It can be a very lonely step and one that throws up all sorts of challenges we did not anticipate.” Quite. The groups therefore offer support and advice, aimed at helping people become better parents and more child-focussed.  If you feel you would benefit from attending one of the groups, then get in touch with Emma.

Have a good weekend.

Author: John Bolch

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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