LASPO, reporting restrictions and more

Family Law|March 16th 2018

A WEEK IN FAMILY LAW

The Government has finally launched its post-implementation review of the changes made to legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The aim of the review will be to assess the extent to which the objectives of the LASPO changes (as explained here) were achieved. The Ministry of Justice also says that since LASPO there have been significant developments in the justice system, including the processes through which people can access legal advice. Accordingly, the Government also “plans to use this opportunity to inform its wider consideration on the future of legal support in the justice system.” It all sounds grand, but anyone expecting the review to result in the reinstatement of legal aid to all private law family matters is, I’m afraid, seriously deluded.

Mr Justice Mostyn has issued a restraining order to stop a man in a long-running divorce case from contacting his former wife’s solicitor on her private email address. In Maughan v Wilmot the husband, despite being subject to a civil restraint order, was said to have “bombarded the court, [Mr Justice Mostyn’s] clerk, the applicant’s solicitor and the applicant’s counsel with an extraordinary volume of emails” including, since 27 October last, 27 to court staff, 36 to the court’s generic email address, 26 to Mr Justice Mostyn’s clerk, 26 to the wife’s solicitor and 5 to the wife’s barrister. Upon being requested to restrain the husband from communicating with the wife’s solicitor on her private email address, Mr Justice Mostyn said: “It is completely unacceptable that this form of harassment should take place. The application is made on behalf of the applicant to protect her servant or agent, namely her solicitor, and I am satisfied that is appropriate to grant that order.” Unfortunately, this is a sign of the times. Email is a wonderful thing, but it is far too easy to use it to harass court staff and lawyers in this way. When I was practising I received the odd ‘difficult’ letter from unrepresented parties on the other side, as all family lawyers no doubt do. However, I’m sure the incidence of such missives has gone through the roof since the advent of email. Courts need to come down hard on anyone abusing the ‘privilege’ of email in this way.

The President of the Family Division Sir James Munby has said that a sexual relationship not necessary for a valid marriage. In the case X (A Child : foreign surrogacy), a married couple were applying for a parental order following a foreign surrogacy arrangement. One of the requirements for applying for a parental order is that the applicants must be husband and wife, civil partners, or in a long-term relationship. However, here one of the applicants was gay, and their relationship was platonic. The question arose as to whether this in any way affected their ability to fall within the definition of “husband and wife”. Sir James quite rightly gave the answer: “a plain and unequivocal, No.” More importantly, Sir James mentioned in his judgment one of my family law heroes, Sir Cresswell Cresswell, as I explained in this post.

And finally, still with our tireless President, Sir James Munby has said that reporting restrictions in the family courts could be allowing judges to get away with mistakes. Speaking at the Bridget Lindley Memorial Lecture in Birmingham, Sir James is reported to have told his audience that judges were “grotesquely overworked” and “tired”, and so more likely to make errors, and that more openness would allow journalists and the public to scrutinise their decisions. “The simple fact is that at present journalists can’t [criticise judges] without access to the evidence and without reporting what went on in court and saying well, this judge seems to be listening to a different witness than I, and the impression I got from listening to this witness was X,Y,Z and the judge says A,B,C. So I think there are very real problems there,” he said. Yes, agreed, but there are of course good reasons why the reporting restrictions exist. I haven’t seen the whole speech and I don’t know what, if any, answers Sir James proposed, but sweeping away all restrictions is not one of them. This transparency versus privacy debate will no doubt continue to run and run.

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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