A week in family law: An inheritance claim, special guardianship and trends in living arrangements

Family Law|August 9th 2019

It seems that much of the family law world has de-camped to the beach for their holidays. Some of us, however, have to stay at our desks to keep an eye on what is going on, including the following three news items.

Firstly, and as I reported here on Wednesday, the Court of Appeal has allowed an appeal by a widow whose claim against the estate of her late husband was disallowed by the court for being out of time. As I explained in my post, such claims should normally be made within six months of the grant of probate. However, in this case the widow did not make her claim until nearly 17 months after the six month period had expired. She therefore had to ask the court for permission to make her claim out of time. Mr Justice Mostyn refused her permission, finding that the claim had no real prospect of success, and that she had not demonstrated any good reasons for what he described as the “very substantial delay”. The widow appealed to the Court of Appeal, which found that, having regard to the length of the relationship and the size and nature of the estate, the claim did have a real prospect of success, and that there were good reasons for the delay, as the widow had been trying to settle the matter without going to court. The Court of Appeal therefore allowed the appeal, and granted her permission to proceed with her claim. Whilst many will agree with this decision, I suspect that there will be many others who do not – as I said in my post, inheritance claims can be quite controversial.

Secondly, a new research review has called for significant changes to Special Guardianship Orders (‘SGOs’), including ensuring that family members who might become carers have direct experience of looking after the child before the order is made. The review, which was commissioned by the Nuffield Family Justice Observatory in response to a call by the Court of Appeal for authoritative, evidence-based guidance for the use of SGOs, shows that SGOs provide children with a safe, permanent home with family members when the court decides they cannot live with their birth parents. However, local authorities and the courts face major challenges in providing special guardians with adequate preparation and support for the long-term consequences of this life-changing responsibility, leading to avoidable and significant stress that is potentially damaging to children’s futures. Special guardians, who are usually family members, have parental responsibility for the child in their care, but unlike adoption, the basic legal link between the child and their birth parents is preserved. The use of SGOs has rapidly increased – between 2010/11 and 2016/17, more than 21,000 children had an SGO made at the end of their care proceedings. The review was led by Dr John Simmonds from CoramBAAF and Professor Judith Harwin from Lancaster University, who said: “Special guardianship is an immensely important route out of the care system. This review confirms what we have known for too long. We expect too much of special guardians and need to ensure their entitlements to preparation, advice and support match those available to foster carers and adopters. The practice of making a SGO before the child has lived with the carer is hard to justify and should stop.”

And finally, the Office for National Statistics (‘ONS’) has published its latest figures for trends in living arrangements in the UK, for 2018. Amongst the main points were that there were 19.1 million families in the UK, an increase of 8% from 17.7 million in 2008; that the number of cohabiting couple families continues to grow faster than married couple and lone parent families, with an increase of 25.8% over the decade 2008 to 2018; and that the number of same-sex couple families has grown by more than 50% since 2015, with more than four times as many same-sex married couple families in 2018 compared with 2015. Sophie Sanders, of the Population Statistics Division at the ONS commented: “The number of families and households in the UK has continued to rise in line with the growth of the UK population over the past decade. However, the ways that people live have been changing. While married couple families remain the most common, cohabiting couples are the fastest growing family type as people increasingly choose to live together before, or without, getting married. There are also more people living alone than ever before, an increasing number of same-sex couple families and more young adults living with their parents.” I may have a closer look at the figures in the coming days.

Have a good 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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