A week in family law – Non-Brexit Edition

Family Law|Industry News|March 29th 2019

You probably won’t thank me for mentioning it, but today was of course supposed to be ‘Brexit’ Day, when the UK was to leave the European Union. Some were expecting to celebrate, some to commiserate, and some no doubt just to breathe a huge sigh of relief. Alas, it was not to be. I shall therefore try to assuage your disappointment with a little family law news.

And I do mean ‘a little’. The news this week has been as scarce as an honest politician in Westminster. This is what I found:

Firstly, that effective co-parenting could be the answer to keeping children out of the courts. I can’t honestly say that this is the most profound insight (after all, if parents can agree matters between themselves, then there should be no need to go to court), but perhaps it had to be said. It was said by Cafcass, at a conference held by them and the Association of Family and Conciliation Courts. Cafcass suggested that agencies from across the sector need to place a greater emphasis on co-parenting and find ways to effectively support parents so that they can prioritise the interests of their child, despite the stress they may be suffering during and after separation. Cafcass also suggested that a public health approach to the problem of ‘toxic parenting’ would help to prevent cases from reaching crisis point, with health and social care professionals working together in a more integrated way, to refer families to” tailored evidence-based support”, in order to resolve difficulties at an earlier stage. Sounds like an interesting idea, but whether it will make much difference, I’m not so sure.

Secondly, the Stalking Protection Act 2019, which makes provision for protecting persons from risks associated with stalking, has come into force. The Act creates a new ‘stalking protection order’ (‘SPO’), which is available on application from the police to a magistrates’ court. An SPO enables the imposition of both prohibitions and requirements on the perpetrator. Any breach of the terms of the SPO would result in a criminal offence. The order is designed for use particularly in cases where existing interventions are not always applicable, namely when the stalking occurs outside of a domestic abuse context, or where the perpetrator is not a current or former intimate partner of the victim (so called ‘stranger stalking’); or the criminal threshold has not, or has not yet, been met (such as while a criminal case is being built), or the victim does not support a prosecution. Let us hope that the Act helps to reduce the scourge of stalking.

And lastly, as I reported here, Sir James Munby, the former President of the Family Division, has severely criticised the government over legal aid restrictions, which left a divorced couple who were labelled as bigamists through no fault of their own having to rely upon free help from lawyers. As I explained in my post, the husband had issued divorce proceedings on the basis that he and the wife had been separated for two years and the wife consented to the divorce, despite the fact that the parties had not been married for two years when the divorce was issued, and therefore had not been separated for two years. The court failed to spot the error, and the divorce went through. Both the husband and the wife subsequently remarried. The error then came to light, and the Queen’s Proctor applied to the court to have the divorce set aside as null and void, which would have meant that the parties were still married to one another, and had therefore committed bigamy. However, Sir James Munby ruled that the marriage was not void. I’m not sure that I agree with his decision, but I certainly do agree with what he said about the legal aid position: “What I was faced with here was the profoundly disturbing fact that [the wife] does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created to the goodwill, the charity, of the legal profession.”

Have a good, Brexit-free, weekend.

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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Comment(1)

  1. spinner says:

    “effective co-parenting could be the answer to keeping children out of the courts” – You have to stop massively financially incentivising one parent declaring themselves the “primary carer” and monopolising the child care. Maybe there are some cases of “toxic” parenting but I suspect there are more cases where one parent realises that if they are primary carer they will get a must better settlement from the CMS and the family courts.

    “The court failed to spot the error” – When everything is online these type of checks will be easy as there will always be some human error. I don’t see how this is a story about legal aid, the couple navigated the system just fine the problem was the checking in the system.

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