Review of the year in family law

As this will be our last blog of the year – our Yule Blog (sorry!) – we thought we’d look back over the highs and lows and themes in family law from the past twelve months. In some ways it has been a momentous year for family law, and in others we have seen a steady development of themes and practice.

So starting with a momentous moment, the Marriage (Same Sex Couples) Act came into force on 13 March giving equality in the marriage arena to all couples. As well as domestic couples, the legislation provides for English law to recognise same sex marriages validly celebrated overseas. Glitches in the legislation that prevented the conversion of civil partnerships into marriage were eventually ironed out this month, after regulations were approved by Parliament removing the need for a civil partnership to be dissolved before a marriage could be celebrated. Since 10 December, couples have been able to convert a civil partnership into a marriage and their marriage certificate will show the marriage should be treated as existing from the date of the original civil partnership.

We also saw the switch to the Single Family Court in April. This was part of the streamlining and modernising of family justice. The new court brings together the functions of the Magistrates, County and High Courts under one umbrella organisation, and now all locations of the family court can deal with all aspects of family law, with a few limited exceptions which have been reserved to the High Court (mainly to do with mentally incapacitated adults and international child related disputes).

The same month saw new legislation, the Children and Families Act, hit the statute books. This brought in new terminology: out with residence and contact and in with child arrangements orders. We also saw the introduction of the presumption that it is in the best interests of the children of separated parents to have continuing involvement of both parents in their lives. The Act also made it a requirement to attend a family Mediation, Information and Assessment Meeting (MIAM) to find out about and consider mediation before applying for certain types of court order.

Speaking of mediation, there has been growing encouragement of it, along with other forms of alternative dispute resolution from all quarters. However, take-up remains stubbornly low. So the President of the Family Division and other judges have done all they can to encourage couples to use mediation, including imposing costs penalties for unreasonable stances in relation to mediation and adjourning cases to allow for renewed attempts at settling the case through mediation. Agreements reached through arbitration, collaborative law or mediation should now be approved by the court automatically unless something is clearly awry. In addition to the judiciary, the Ministry of Justice recently announced that where one party to a family dispute is legally aided, the government will now fund both parties’ attendance at one session of mediation at a legal aid provider.

This year has seen concerted attempts from the Government and the courts to steer couples towards the quicker, cheaper, and more dignified approaches of alternative dispute resolution. Given the problems under which the family court is operating, caused in no small part by the removal of legal aid for family law, and the benefits to the family concerned of resolving separation outside the court system, we applaud this trend, but note that the removal of legal aid from family court proceedings has effectively led to many parents – and of course their children – being denied access to justice, or justice itself.

We have also seen the courts toughening up enforcing rules about the paperwork presented to them and taking a stricter approach with those who flout orders for disclosure or disobey court orders (Michael Prest’s sentence and Libor Krejci’s being just two examples this year)

So we have seen the courts getting tough on miscreants and doing all they can to keep couples away from their doors, whilst they struggle on with the ever increasing numbers of self-represented litigants. The President is leading the increasing move to make the courts as transparent as possible. We’ve also seen pre-nuptial agreements being upheld by the courts which also goes along with the general trend of courts encouraging and recognising autonomy for couples in sorting out their own financial situations.

Looking forward to 2015, the Cohabitation Bill had its second reading in the Lords recently and will proceed to committee stage next year. The Supreme Court recently heard the appeal in the case of Vince v Wyatt where the wife was seeking a large lump sum many years after divorcing her wind-farm entrepreneur husband). The result should be out early in 2015 and will make interesting reading. Later in the year, the Supreme Court will be getting its teeth into the combined appeals in Sharland and Gohill – cases where the effect of non-disclosure in financial proceedings are in issue. That will be an interesting judgment to look out for.

It’s been a special year for us at CFLP: the brilliant Tricia Ashton is now part of our team, our partners are again rated as leading East Anglian lawyers in the Legal 500, and we’re still top of the tree in the Cambridge family law rankings in the respected Chambers & Partners directory, which uses client feedback to determine how well firms are doing. We’ve got some interesting plans for next year too, so watch this space.

We hope that you all have a peaceful Christmas and New Year. Please note that we’ll be closed to give our hardworking staff a Christmas break from 5pm on Tuesday 23 December until 9am on Friday 2 January, and we’ll also be taking a break from blogging during the festivities. Other than during that period, if you would like to make an appointment to speak to Tricia, Simon, Gail, Adam or Sue, just give us a call on 01223 443333.

Proceedings, papers and profligacy

It is hardly headline-grabbing news to say that the family court is under immense pressure at the moment. There are increasing numbers of litigants in person having to manage complex and emotionally draining disputes in the courts without the benefit of legal advice or representation, due to the removal of legal aid for all but a few family cases. Judges are finding themselves having to help litigants in person by spending greater time explaining the procedures, decisions and implications. Additionally, court budgets have been cut and there are fewer full-time specialist judges. So cases are taking longer, and court time is even more precious than before.

In tandem with this trend, there have been attempts to curtail the amount of paperwork judges have to wade through when they are hearing a case. Practice directions are rules governing how solicitors, barristers, unrepresented parties and the court must go about preparing and presenting a case. They supplement, and must be read in conjunction with, the Rules of Court.

One practice direction which has been brought in specifically to streamline hearings and focus minds on the core issues in dispute concerns ‘court bundles’ – the technical term for the papers that the court is required to read and have available to it before and during a hearing. It provides that, when a case goes to trial there is to be one ‘bundle’ – a lever arch file – of no more than 350 pages containing the key documents which the judge needs to see, and to which the parties will refer in the trial. One bundle of documents, properly paginated, aims to focus minds on what is really important in the case, and reduce time wasted reading and looking for the more peripheral evidence.

In two recent cases, judges have lambasted what appears to be a growing practice in some legal quarters to get around the one bundle rule by treating the specified one bundle as a “core bundle” and then delivering to court several other piles of paper on the eve of the hearing. Both cases have also featured staggering legal costs.

The first one, J v J, concerned a couple who had been married for 15 years and had two children. By the time of the final financial hearing in divorce proceedings they had spent £920,000 on legal costs between them, which represented a third of what they had built up together during their relationship. The judge described this is a grotesque leaching of legal costs. Their litigation was characterised by a failure to agree on anything, and there were 8 bundles prepared for the hearing (not the single one stipulated) which wasted a “prodigious amount of time” while witnesses shuffled papers and files around. In the end the assets were split equally, and it cost the couple close to £1m to get that result.

The second one, Seagrove v Sullivan, concerned a couple who had not married but had been together for 20 years and had three children. They were arguing over whether one of them could claim a half share of their house under trust and property law (as the situation for cohabitants is very different to that for spouses and civil partners, and the law that applies is rather cobbled together). Between them, by the time the case came to trial they had managed to spend a staggering £1,300,000 on legal costs. The half interest in the house, over which they were arguing, was valued at £500,000. The judge, quite rightly, described this as “appalling profligacy”, given that the amount spent on legal costs was approaching three time the amount they were arguing over.

The judge was also flabbergasted at the wanton disregard for the practice direction requiring a single bundle to be prepared. Five lever arch files had been delivered to the court the day before the trial, then a further three bundles of case law authorities were sent to the court, then on the morning of the trial, lawyers arrived with a further five bundles. We make that thirteen folders of papers, which amounted to 3500 pages to be considered and referred to – ten times the permitted limit. The judge referred to the amount of paperwork produced for this relatively simple dispute as ridiculously disproportionate. He then took the dramatic step of ordering all the bundles to be removed from the courtroom, adjourned the case until the following day, and only permitted the parties to return to court the following day once they had agreed one bundle, as per the practice direction.

Sensibly, overnight, the parties managed to come to an agreement.

Given the pressure on court time, the question of proportionality of litigation is a pertinent one. The courts have to allocate their stretched resources fairly. The judge in the Seagrove case was driven to comment: “the courts have a duty to ensure that an appropriate, but only an appropriate, share of the court’s resources are allocated to any one case. [They] have to deal also with an enormous number of very difficult cases involving the future of vulnerable children, and the care and treatment of sick people, including mentally incapacitated people. It is simply not tolerable that we go on and on affording to people like [the parties in this case] an estimated eight days of court time on a dispute that ultimately is measured in something not exceeding about £500,000”.

It looks to us like the courts will be getting much stricter in financial family matters, rigorously managing court time and resources and trying to ensure fair hearings for all.  These cases also serve as a reminder that it is essential to instruct good lawyers who will keep an eye on the level of your costs and look for ways to avoid court if at all possible.

As ever, if there is anything of a family law nature that you would like to make an appointment to talk to us about, please get in touch with Tricia, Gail, Adam, Simon or Sue on 01223 443333.

Breaking barriers to mediation

Last week we wrote about the alternatives to court as our way of supporting Resolution’s third dispute resolution week. This week, we are going to take a closer look at mediation.

The news headlines surrounding it tend to give a bit of a mixed message. On the one hand we have the Family Justice Minister, Simon Hughes, saying recently that mediation is the sign of a civilised society, and that the Government is “committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court”. On the other the published figures indicate variable take up of mediation. Since the cuts to legal aid in family litigation were enacted, figures for take up of publicly funded mediation have dropped sharply, despite the continued and expanded availability of free mediation sessions from accredited providers where people are eligible. Where it is privately funded, the take up is better, but it is still not the success story it should be.

Since April 2014 it has been compulsory for people to attend a mediation information and assessment meeting (MIAM) session before they can apply for a court order about finances on divorce or children matters. So what is it that is stopping couples going on to use mediation to resolve their disputes?

There is still some misunderstanding as to what mediation actually is. It is not a form of counselling or therapy, but rather a negotiation to solve a dispute guided and steered by a neutral facilitator. It is cheaper and quicker than litigation, and can be used to sort out both disputes over arrangements for children and over financial matters, or both.

Perhaps the most obvious barrier to mediation is emotional: if you were all getting on famously and there were no problems, then there would be no need to mediate. So the fact that relations are strained will not make the prospect of sitting down in a room with the person who is causing you grief very appetising. Emotions will be running high, and might include shock, guilt, anger and fear. It requires bravery to sit around a table, with your partner, and a relative stranger (the mediator) and discuss your future. There is no hiding behind lawyers’ correspondence. And courage can be hard to come by at times of emotional distress.

It also takes two to mediate, and two to want to mediate. Sometimes one might want to and the other does not, and sometimes because one wants to the other may refuse. Some might want the support of a solicitor and believe that mediation denies them that. That is not the case, as it is perfectly possible to take legal advice, both before attending mediation and whilst the process is ongoing; in a lawyer-supported mediation, you can even take a solicitor with you. You do not have to go into sessions uninformed or unsupported.

If tensions are running high, then you might be concerned about sitting in the same room as your former partner. Strictly speaking you don’t have to. Mediation can be done in two rooms with you separate throughout, through a form of “shuttle diplomacy” with the mediator moving between. In cases where there are safety concerns but it is still safe to mediate, this can be a good answer, and in other circumstances it can be a good starting point, but if the goal is to make sensible, swift progress this tends to happen better in a same-room meeting.  It is rarely as bad as you might expect. The mediator is used to handling tense situations, and trained to assist you both to move negotiations forward.

If you are concerned that your former partner might be dishonest, rest assured that mediation is not an easy option: unless agreed otherwise, you are both under the same obligation to provide disclosure as you would be in the court process. If you have real concerns about dishonesty, then do speak to a solicitor about other options.

You may have concerns that you would be vulnerable in mediation if you’ve never dealt with the family finances and don’t understand them, or if you lack confidence in dealing with your former partner. The role of the mediator is to ensure each party is heard and understood, and to ask questions where this helps move the process on by increasing everyone’s understanding and confidence to a point where an agreement is possible. There is no place for bullying in mediation.

Some people are concerned that if the mediator has been chosen by their former partner then they might not be neutral or independent. It’s important to understand that an initial approach made by one party does not undermine that. Someone has to go first, but the mediator will investigate with both of you your concerns and priorities.

We also hear concerns expressed that because the process is voluntary, any agreement reached might not be honoured. In our experience, most people do honour agreements reached because they work hard for them and only agree what is tolerable (in contrast to a court order, which some people might find intolerable). If you have concerns in that regard, it is possible to have the agreement reached made into a court order by consent. Where the issues are financial, this is particularly important.   A lawyer mediator, as we are at CFLP, can ensure you have the right information to make arrangements that suit you and will also be approved by the court.

It seems fairly ingrained in our national psyche that when family problems arise, the only thing to do is to go to court to sort it out. Mediation is not the first thing people think of. We hope that with greater awareness of the benefits of mediation and the skills of mediators, more people will see that mediation is a good way to sort out their separation.

If you would like to talk to any of us about mediation, please get in touch. Gail, Sue and Adam are trained mediators, and Tricia is a community mediator. We are on 01223 443333.

A Better Way to divorce or separate

This week is Resolution’s third Family Dispute Resolution Week. It’s an awareness-raising campaign which aims to highlight the alternatives to court for separating couples and their families. There are events going on around the country to help spread the word that there are alternatives to courtroom battles for separating couples, and there’s been plenty of media coverage already on the surveys commissioned by Resolution about the effects of divorce on kids and the working economy (see e.g. here, here and here).  As you know, at CFLP we are keen on using the right horse for the course, and in many circumstances, that horse isn’t the court. We are mediators, collaborative lawyers, negotiators and supporters of those who try to work towards decisions without judicial involvement (except by consent).

To show our support for the family Dispute Resolution Week, which you can follow on Twitter via @ResFamilyLaw using #abetterway, here’s a handy reminder of the options if you would like to resolve matters without contested proceedings in court.

Mediation is where the couple meet with an experienced third party mediator and go through a process that helps you to talk and make decisions which you can both tolerate, which form the basis of an agreement between you which can be turned into a binding court order by consent. Earlier this month the Ministry of Justice announced that where one party to a family dispute is legally aided, the government will now fund both parties’ attendance at one session of mediation with a legal aid qualified mediator. Traditionally, mediation has not been a process which has involved lawyers, but lawyer assisted mediation is now becoming a more accepted option. Here, lawyers attend the mediation sessions with their clients, in order to advise on the spot and help their clients use the process to reach a settlement with the benefit of advice. Some clients prefer this level of support; others attend mediation without their lawyers, taking advice between sessions. The process is flexible.

The courts are supportive of mediation, and whilst they cannot compel couples to attend and engage in mediation they have used what mechanisms are at their disposal to encourage couples to use it to sort out their differences. In one case where an agreement to mediate had been reneged upon, the case was adjourned to ‘allow’ the couple to try again. In another, where one party was found to have been unreasonable in relation to mediation, costs penalties were applied against her. This is an interesting and fast-moving area of the law.

Arbitration is where you choose a specially-trained and experienced family law arbitrator to make a binding decision about specific matters on which you cannot agree, or on the whole of your case. The process has some similarities to a judicial process in that the arbitrator will make a decision after hearing arguments from both parties, and that decision will be binding unless later unravelled by a court for good reason. Arbitration was given a judicial thumbs up earlier this year by the President of the Family Division, when he said that where parties have voluntarily bound themselves to an arbitrator’s award by signing a contract to do so, then the court should not interfere with the award and subsequent consent order, except in extreme circumstances. This was perhaps the court approval that arbitration needed really to be taken seriously as a dispute resolution mechanism.

Collaborative Law is where each of you engages a specially-trained lawyer, and decisions about the future are made in a series of communal meetings under an agreement which stipulates that you will not use the court, except to send in paperwork for the final binding order. The President has made it clear that an agreement reached through collaborative law should be given a streamlined process of judicial approval. The collaborative process is flexible and holistic, and seeks to find solutions that work in the best way for all members of the family.

A further option which has joined the ADR stable quite recently is known as “early neutral evaluation” or “private FDR” – both terms being a form of private judging. Some barristers offer a private version of the court-based FDR in financial proceedings, where they take the role of the judge to provide an objective view of what sort of outcome would be fair. This can help promote settlement or at least reduce the issues between the couple. It is generally not binding (unlike arbitration) but can be a useful tool to indicate at an early stage what the likely outcome of litigating would be. It is also possible to use a similar process for disputes about arrangements for children: in fact, in a recent case, the parents signed up in advance to abide by the evaluator’s decision.

And then of course, there is good old-fashioned negotiation. A good lawyer will discuss with you your aims and the options for reaching a resolution, so they can understand your priorities and work on your behalf to achieve what you consider to be a decent resolution. We hope that the awareness raising going on this week will encourage more people to think about non-court based ways of resolving things. That’s not to say court proceedings are not necessary in some cases – they certainly are – but for many separating or divorcing couples, issues can be narrowed or sorted out without that stress and expense, and with greater privacy. Knowing your options can give you the power to choose the right horse for the course you and your family happen to be on.

If you would like to talk through any of the dispute resolution approaches mentioned above, do give Gail, Adam, Sue, Simon or Tricia a call on 01223 443333.