A week in family law: reform, legal aid, twitter and the B-word

Family Law|February 8th 2019

I was one of the relatively early adopters of Twitter, joining in May 2008. Back then there were very few lawyers using the platform, and most of those that did, including myself, did not take it seriously. We certainly would never have imagined that a High Court judge would have used the platform as a tool in a family law case. But that is what has happened. Mr Justice Williams has used Twitter to urge a mother who vanished with her three-year-old son to return home. Ellie Yarrow-Sanders disappeared with Olly Sheridan in July, after becoming involved in family court litigation with Olly’s father, Patrick Sheridan. It is believed to be the first time a judge has used Twitter in this way. Mr Justice Williams said that he was gravely concerned that a child had been missing for so long and made an appeal directly to Ellie to bring him back, promising to deal with her case fairly. Let us hope the appeal does the trick, and that Olly is returned.

New research published yesterday by the Nuffield Foundation reinforces the case for reform of the overly complex divorce system in England and Wales. The research found that the current system can fuel conflict and disadvantages people who represent themselves, and those alleging abuse as grounds for divorce. It recommended that the proposed notification period of six months should begin before decree nisi, to avoid people being subject to unpredictable variations in processing times; that the ability to defend a divorce should be removed; and that the significant minority (14%) of cases in which one party does not respond to the divorce petition needs to be addressed. The research was undertaken by Professor Liz Trinder at the University of Exeter, who said: “This new research reinforces the case for divorce law reform along the lines proposed by the Ministry of Justice. The current system is complex, confusing and creates unnecessary conflict. The proposal to allow divorce only after a ‘cooling off’ period will help families focus on the future, not on an unhelpful ‘blame game’. Our new research also finds that the Ministry of Justice is right to propose removing the outdated right to defend a divorce.”

And it looks like those calling for no-fault divorce are going to get their wish. Just today the news broke that the Lord Chancellor, David Gauke, has confirmed that he will introduce legislation enacting the reform in the next session of parliament. Let us just hope they do not make a mess of it this time around, as they did with the ill-fated Family Law Act 1996.

Moving on, the Government has published its long-awaited review of the effects of the legal aid cuts introduced in 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’). Unsurprisingly, the review concedes that LASPO was “not entirely successful at discouraging unnecessary and adversarial litigation at public expense”, and that there is “limited quantitative evidence to demonstrate” that money saved by cutting legal aid simply transferred costs to other departments. Ouch. To deal with the problems caused by LASPO the government has announced a ‘Legal Support Action Plan’, including “An investment of up to £5 million in developing innovative technologies and testing new methods of delivering support”. An additional £3 million will also be invested over the next two years to support those representing themselves through the court system. Legal aid will also be restored for a few limited cases involving children. Considering that LASPO reduced annual spending on legal aid by at least £350 million, this money is just a drop in the ocean. Undaunted, Justice Minister Lucy Frazer, said: “Legal aid will continue to play an important role and we are committed to ensuring people can access the help they need into the future. However, in seeking to bolster legal aid as a key part of helping people with a diverse range of problems, we are clear that there is much to do aside from legal aid, so we are emphasising the need for new technologies and new ideas to catch people early, before their problems escalate to the courtroom.”

And finally, dare I mention the B-word? Yes, Brexit has cropped up again in the family law news headlines. Twice. First of all, Resolution, the association of family lawyers, and The Law Society issued a joint note for family lawyers in England and Wales, with recommendations in the event of no-deal in relation to Brexit on areas of family law including divorce, maintenance and children proceedings, which you can find here. Secondly, and similarly, the Ministry of Justice and the Foreign & Commonwealth Office published guidance on what to do if the UK leaves the EU without a deal on the 29th of March and you are involved in a family law dispute (including divorce and child maintenance) with someone living in the EU. You can find that guidance here. So, whether you are a family lawyer or just someone unfortunate enough to be involved in a family law dispute, at least you will know what to do should we have a no-deal Brexit. Which may be more than you can say for our politicians…

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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