A New Children & Families Bill

Posted on by
Reply

Last week, the Queen announced Parliament’s intentions for the next term, including the introduction of a fair few measures to reform the law applying to families in a new Children and Families Bill, to be introduced in April 2013. We at CFLP thought we’d give you a rundown of the proposals.

The government will be introducing measures to allow court-based legal advisers to process uncontested divorce applications, rather than requiring a judge to consider each and every one. This is intended to have the effect of freeing up judges’ time (we suspect they will need it, to deal with the influx of self-represented litigants flooding the courts when legal aid is removed next April); it will also finally convert divorce into a purely administrative process (and if you’re interested in the history of how it got to this point, have a look at our previous post here). In our view this is an entirely sensible development, although as we’ve said before we’d quite like the government to go a little bit further and move to a system where everyone can obtain a divorce or civil partnership dissolution without having to make allegations of fault.

Unsurprisingly, despite all the noise made by David Cameron about same-sex marriage a couple of months ago, there will be nothing in the next Parliament to progress those aspirations. It’s true that the consultation doesn’t close until the middle of June (find it here), but it’s clear that the whole area has slipped down the priority list, possibly due to pressure from the right of the party. Cabinet minister Phil Hammond said on Sunday that rather than focusing on gay marriage, the government has to concentrate instead on “things that matter”. What an unfortunate turn of phrase that is for those of us who believe in equality! We will wait with slightly subdued interest to see the results of the consultation and the government’s subsequent response.

Back to the Bill: in disputes between parents about children where there are no significant concerns requiring the local authority to intervene (what we call “private law”), the government will be making attendance at a Mediation Information and Assessment Meeting a statutory prerequisite to starting court proceedings. At present, the requirement on a prospective court applicant to attend such a meeting to investigate the use of mediation is not universally enforced by court staff or judges. The government clearly considers that it needs to strengthen the requirement and make it statutory to give it more force. It is also part of their drive to put mediation at the heart of the family justice system and make mediators the gatekeepers for it, something that has been met by near-universal trepidation among the mediation profession.

Most interestingly, the government has confirmed that it intends “to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe and in the child’s best interests.” It believes that this change will encourage separated parents to sort things out without involving the courts, and to make agreements “that fully involve both parents” (see the Department for Education’s press release).

We have noted practitioners’ concerns about a change of terminology previously. In our view, the law already supports involving both parents in the care of the child as a best option wherever it is safe to do so, and this is the approach already taken by the courts and by mediators. The paramount principle that guides the court, when making a decision about the future arrangements for children, is what is in the best interests of that particular child or those children. Some consider that any principle inserted into the Children Act requiring there to be a presumption of anything will dilute the paramouncy principle, create expectations on the part of separated parents that are not wholly compatible with children’s needs, and make it more difficult for those who have serious concerns about another parent’s safe parenting to establish a case for restricting their contact with the children. Others believe that a reinforcement of a two-parent principle for children will redress what they consider to be a post-separation gender bias about the care of children, or simply make explicit a principle which is already ingrained in the law.

The Government clearly understands that there are reservations. Indeed, David Norgrove was not himself in favour of this change in his report on Family Justice which the government commissioned. It has announced its intention to consult shortly about how the legislation can be framed to ensure that a meaningful relationship is not about an equal division of time but the quality of time that a child spends with each parent. We wish them luck with untangling this, which seems like a game of second-guessing how parents in the midst of emotional turmoil will be persuaded that what the law seems to imply does not actually mean that after all, even though they changed the law specifically to imply it.

For regular readers, it is unlikely to have escaped your attention that the introduction of this Bill is likely to coincide with the removal of legal aid in private family cases, meaning that it is likely to be up to mediators as the first line of defence for the courts in the new system to tell newly separated parents that the law does not mean what they think it means, without actually being able to give them any legal advice, and then to suggest that they negotiate from that position. A perfect storm indeed.

We’ll let you have details of the consultation when it is announced, so you can have your say. In the meantime, you could always tell us what you think.

 

A second glance at Collaborative Law

Posted on by
Reply

CFLP is committed to offering clients a range of processes to help them work out arrangements for the family after separation, divorce or civil partnership dissolution. Like most family law firms, the bulk of our work is negotiation and litigation, and our strong mediation practice is growing steadily. One area of our service that we’re particularly passionate about is promoting the use of collaborative law where circumstances are appropriate; but like other firms, we’re finding recently that clients are more reluctant than they used to be to investigate this avenue.

For those who aren’t aware, collaborative family law is a different way of working towards family solutions when adult relationships break down. It involves a series of “round table” meetings where both parties and their respective solicitors meet in the same room to investigate finding a fair way forward in the family’s particular unique circumstances. Financial, property and children matters can be approached holistically, and third (or rather, fifth) parties can be brought in to assist where necessary with financial advice, valuations or parenting matters. The key difference with negotiations in the shadow of the court is that in collaborative law, both clients and their solicitors sign an agreement at the beginning of the process which commits them to keeping the discussions confidential – enabling everyone to put their cards on the table in the interests of finding a fair solution – and to settling the dispute without going to court. If the collaborative process is not successful, the parties must instruct new lawyers to litigate the outstanding issues, meaning that there is huge buy-in from the collaborative lawyers towards making the process work, as they do not want to lose a client. You can find more detailed information about collaborative law as we do it at CFLP here.

Cambridge was one of the first places in England to take up the ideas of the collaborative law movement from its origins in the USA, and CFLP lawyers were some of the first to use its principles. We’re some of the most experienced collaborative practitioners around, but even we are finding collaborative law difficult to make attractive to clients in these tricky economic times. We sense that this is partly the time involved in collaborative law: it is quite a time commitment to attend a series of half-day conferences, and when employment or business circumstances are precarious and childcare is expensive, this may not be a commitment everyone can make. There may also be a cost issue: although collaborative law is generally much less expensive than a contested court case about financial matters, the cost of each meeting can seem like a large amount because of the solicitor’s time involved. However, because solicitors’ correspondence is kept to a minimum and there are no court costs, fees are much more certain and predictable in collaborative law. Decisions about how to cover the costs of the process tend to be made together at an early stage so there are no surprises later. In terms of time, some people find that collaborative law makes it easier to compartmentalise their divorce and stop it from infiltrating their thoughts each day, as they know when meetings are going to be and can prepare for them when they wish, without the fear of too many letters arriving on the doormat in between: collaborative law works for people who would prefer to deal with things in chunks of time, rather than little-by-little over a period of weeks or months.

As many relationships are coming under huge pressure because of money worries, we are seeing more high-conflict clients and wonder if the idea of a non-adversarial process may be less attractive to those who feel they need a lawyer “in their corner”. It’s a tricky concept to explain, but being non-positional doesn’t mean that the lawyer is not “on your side”, it simply works in a different way when everyone is pushing as a team to find the solution that best fulfills everyone’s needs. Collaborative lawyers are trained in balancing power and creating a level playing field, meaning clients feel less exposed than they might otherwise. It is true that collaborative law requires give and take on both sides, and the idea of compromise can be a difficult one to come to terms with when the end of a relationship brings with it so much fear. The idea of a court case where there is a “winner” and a “loser” is comfortingly familiar, so it can understandably take a lot to open frightened minds to the opportunities of a different approach, even where the creativity that collaborative working makes possible can lead to a more flexible, suitable outcome than the strict constraints of the court process.

We’ve written before about how useful we think collaborative law can be in cases where there is a family business, but collaborative law offers the chance for better solutions for a wide range of people, even where the two clients involved are finding it difficult to communicate without anger. Trained and experienced collaborative practitioners like those at CFLP are used to and unafraid of conflict, and know how to work with prevailing circumstances to encourage clients to reach solutions that will enable them to face the future with dignity, and without fear of what tomorrow will bring. Most importantly, children facing change in their family unit can benefit massively from the improved communication that usually comes from working collaboratively, in ways that clients rarely expect at the beginning of the process. We still strongly believe in collaborative law in the right circumstances. Give us a call if you’d like to know more – you could also have a look at the Cambridge Collaborative Family Law Group site.

 

Marriage: the gold standard?

Posted on by
Reply

Yesterday saw the launch of The Marriage Foundation, an organisation that has been set up by a High Court Judge “to be a national champion (advocate) for marriage, strengthening the institution for the benefit of children, adults and society as a whole”. At CFLP we’re generally all in favour of something that will benefit children, adults and society as whole, so we thought we’d take a closer look at the project.

Sir Paul Coleridge is the man with the plan. He has been a High Court Judge for 12 years now and previously practised as a barrister in the field of family law. In his interview with the Today programme on 30 April 2012, he claimed that nobody has more experience of the effects that family breakdown is having on society than family law judges. Other family law judges clearly feel the same: the list of those publicly supporting the project is full of members of the judiciary, together with other high-profile participants in the law reform and family justice arena. There is a call for further supporters to make themselves known to the team by contacting Sir Paul on his own Marriage Foundation email address, highlighting the “stand up and be counted” vibe about the website. There’s also a “donate” button next to the “sign up for news” button, in case you feel sufficiently allied to the cause to open your wallet.

The Marriage Foundation’s fundamental purpose is to promote support for marriage, make the public case for marriage, and educate people – particularly the young and the poor, it seems – about marriage as the best structure within which to live a life. The reason for doing so, it says, is because marriage leads to better outcomes for everybody – the foundation is building a resource library that will go on to the website when it is done to shore up its reasoning on the matter. In the meantime, the case is put as follows:

“Governments cannot legislate stronger relationships into existence. Ultimately, more and stronger marriages will be a product of our individual choices, behaviour and culture. The Marriage Foundation will seek to influence the way we think about those choices, as individuals, couples and as a society.

“Our case for marriage is based on pragmatic evaluation of the advantages for children, families, and the local and national community. The richness and diversity of relationships precludes simplistic claims of cause and effect, but there is a significant difference in outcomes and the distinctive features of marriage are an important part of the reason.”

The upshot is, according to the Foundation, that marriage makes people wealthier, healthier, happier, and provides a better start for children. There are economic arguments for marriage based on the costs occasioned to the family justice system, and wider society, from single-parent or cohabiting families as opposed to those from married people; there are notes about people “sliding into parental responsibilities” without making a decision to commit to each other, and statistics about the breakdown of cohabitations. The Marriage Foundation puts these observations forward as a compelling case for promoting marriage, and it is clear that many people agree.

Sir Paul Coleridge’s foundation denies that it is simply trying to turn back the clock; people still want to get married, it says, perhaps not quite getting the point of the question. Some people might think that the site reads like it was written in another world, by a member of a generation far removed from those struggling with the pressures of family life in today’s society. It is difficult to avoid the sense that the project’s overall aim – “marriage as the golden standard” – is harking back to a different time.

This is one of the problems we see with the Marriage Foundation: the sense that encouraging couples to bond together with an outward sign of their commitment and a properly constituted legal relationship will tackle the root cause factors of family breakdown which really affect children’s life chances – unemployment, lack of education, poverty, addiction, and abuse. Making it harder to get out of relationships cannot surely mean that bad relationships are made better, or that unhappy people are made happier and wealthier and healthier? There is also a feminist question: does making marriage a “golden standard” threaten the economic, educational and societal progress that women have made in recent years? It is surely a short step from promoting marriage as the best way to bring up children, to promoting a particular type of marriage where one party (usually, but not always, mummy) stays at home with the children, as we already see from time to time in some sectors of the media, with its attendant emotional impact on parents trying to juggle childrearing with economic subsistence.

We at CFLP are committed to helping people find the least painful way through their family breakdown, and do not judge people on their choice of family structure (if indeed it can always be considered a choice). It seems surprising for such a significant number of judges, who are traditionally independent, impartial and apolitical, to be taking such a value-laden stance which certainly has political overtones – see our earlier post on the government’s marriage agenda. Further to that, there must be a risk that the list of supporters, overwhelmingly white, late-middle-aged, and middle-to-upper class, makes it look like an edict from the ruling classes to do as they, overwhelmingly, do.

The lack of any mention of civil partnerships seems odd, but the issue is obliquely nodded-to in the FAQs when the subject of marriage for gay couples is mentioned. The Marriage Foundation, it says, has children’s interests at its heart, and “for obvious reasons those children are almost entirely located within heterosexual partnerships”. Court-watchers will be surprised to hear this, as the incidence of court cases where the parents are same-sex has been rising rapidly in recent years; but perhaps the Marriage Foundation’s resources do not extend to these children, or they – perhaps – do not think the stability of the partnerships involved is a relevant issue for these children. The general failure to acknowledge that not everyone, and not every child, conforms to a narrow sector of society that has access to marriage, a willing partner, funds to do it and the balance of resources to make it work until death they do part, does not assist their argument that the promotion of marriage will make a difference to children’s life chances in the future.

To be clear: we at CFLP are all in favour of improving children’s life chances and better allocation of resources in the family justice system, as our previous posts refer. We’re just not sure that this is the best way to achieve those ends. What do you think?

PS you can send The Marriage Foundation 50 words to let them know what you think! Just click here.

 

Family justice is changing

Posted on by
2

CFLP’s Simon Bethel and Adam Moghadas attended the East Anglian Family Justice Review Conference in Cambridge on Thursday 19 April. Delegates came from all across the region to the conference organised by Fenners Chambers. They heard speakers including Mr Justice Ryder who is in charge of modernising family justice, plus local practitioners from the fields of social work, mediation, academia and the courts. The idea was to spread the word about the changes that are due to take place in the family justice system over the next couple of years.

Progress in reforming family justice has been slow and a long time coming. We are at a critical point now where the justice system is outdated, overloaded and fraught with delays that are clearly detrimental to the families and children it is tasked with serving and protecting. The government asked David Norgrove, an economist and former civil servant, to undertake a wholesale review of the system and make recommendations for reform. The government response followed, and accepted most of the recommendations made with one particularly controversial exception which we come to below. The judiciary’s response will be published on 31 July.

Mr Justice Ryder set out the timetable for the next fifteen months in the family justice system, which will culminate in the introduction of a new single Family Court in July 2013. Currently there are three tiers of court where family proceedings can be commenced, depending on their complexity: the family proceedings court, heard by magistrates, the county court in which district and circuit judges sit, and the Family Division of the High Court which takes the most difficult and high-profile cases. From July next year, all family cases will be started in the same place and it will be up to the court, rather than the applicant, to make the decision about which tribunal hears the case. This administrative system will be put in place by April 2013 with new legislation.

In cases where the dispute is between the parents or other relatives of children after family breakdown (what we call “private children law”), or is financial and arising from a family separation, divorce or civil partnership dissolution, clients will have to access the family justice system through a new internet and/or telephone ‘hub’ that will refer most cases to a mediator in the first instance. This means that mediators will be on the absolute frontline of the new private family justice arrangements, and there are proposals that they should effectively act as case managers for the system. It is fair to say that mediators are unsure whether they are best suited to take on these new responsibilities, and that there is a lack of sufficiently qualified and experienced mediators who can take up the baton, should they be amenable to doing so. CAFCASS – the Children and Family Court Advisory and Support Service – raised the concern that child protection issues might be missed if more cases are dealt with outside the court framework.

The Norgrove Review was primarily motivated by concerns that the system was failing vulnerable children because of excessive delays in the courts’ care system, and so discussions about the process for taking children into local authority care did take precedence on the day. The government’s aim is to arrange for all children to be placed within 26 weeks of the local authority making an application to the court, but the judges were clear that this was not a judicial timetable but a political edict. Judicial timetables will continue to be dictated by the judges after considering the paramouncy of the children’s best interests. That said, everyone shares the desire to speed up the process, and to that aim Mr Justice Ryder will be encouraging a less expansive approach to obtaining expert evidence in care proceedings where there might instead be a greater reliance on general research findings, and more inquisitorial involvement of the judge (or magistrates) in each case. Training will be given to ensure that those leading the system are confident in making the more proactive decisions they will need to make. As the judge said, “this is the end of the old way of doing things”.

Also at the forefront of practitioners’ thoughts at the moment are the changes being pushed through parliament in the Legal Aid and Sentencing and Punishment of Offenders Bill. As discussed previously, this will see the imminent removal of legal aid from the majority of family proceedings where children are not at risk of harm. Jo Miles of Cambridge University presented a compelling case against these changes, highlighting areas where the proposed changes are especially ill-thought out and could damage children’s prospects. The lack of a coherent system to address the impact of a likely massive increase in self-represented litigants without access to any legal guidance in the family courts is a worry for us all, and Jo Miles got the loudest applause of the day for her exposé.

The panel referred to the one exception to the government’s general agreement with David Norgrove: the government wants to see the introduction of some kind of presumption of shared parenting after family breakdown, despite the fact that this was examined in detail by the Report before being dismissed. David Norgrove and his advisers looked at the experiences of other jurisdictions that have introduced such a presumption and found that it has caused more problems in court because of misunderstandings about what shared parenting means; there is no research to support its introduction here. We will have to wait and see what happens on this – practitioners’ views are polarised, with many feeling that there should be a rebuttable presumption that both parents should remain involved in a child’s life, while others feel that any presumption takes away from the primacy of the child’s best interests. The fact that the government is removing the terms “residence” and “contact” and replacing them with a “child arrangements order” is causing concern in the same context.

The general upshot of the conference was that, on the whole, the law is not changing but the framework surrounding it may be a different shape in fifteen months’ time. Our reaction at CFLP is that the new single Family Court may well be an improvement in the long term, but the big issue for us is the removal of legal aid and the likely increase in self-represented parties in court, which in turn will lead to increased delays in private cases. In the wider system, there are concerns about the adequacy of judicial and magistrate training to handle the new-style inquisitorial system, and the lack of experienced mediators at triage stage. There was an overwhelming sense of the political pressure under which family law judges now operate, and it was clear that this is highly contentious. It feels like a volatile time for family law: there are clearly a few powder kegs ready to blow. The question is what – or who – will strike the match.