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Family-friendly laws?

The Government has announced that all future policy and legislation is to be subjected to a family friendly filter before it can be enacted. This is a Conservative party initiative to ensure that families are supported, and not adversely affected, by developments in law and policy. From October, all government departments will have to assess the impact of policy on “supporting family life” (whatever that means). The family-friendly test will run alongside other policy tests such as cost-effectiveness, equality and environmental impact, with the idea being that laws and policies which are deemed not to support family life will be consigned to the parliamentary scrapheap.

You can read the DWP’s press release here. So what is this new test?

In essence, new guidance from the Government sets out five questions that all civil servants will need to consider when first developing policy and legislation and before it is put to ministers or introduced to Parliament. The guidance has been drawn up in consultation with families’ groups, and has been welcomed by Relate and others.

The five questions which comprise the new test are:

  • What kind of impact might the policy have on family formation?
  • What kind of impact will the policy have on families going through key transitions such as becoming parents, getting married, fostering or adopting, bereavement, redundancy, new caring responsibilities or the onset of a long-term health condition?
  • What impacts will the policy have on all family members’ ability to play a full role in family life, including with respect to parenting and other caring responsibilities?
  • How does the policy impact families before, during and after couple separation?
  • How does the policy impact those families most at risk of deterioration of relationship quality and breakdown?

The new test covers all sorts of relationships that make up family life: opposite and same sex couples whether married, living together or living apart, single parents, step-parents, relationships with children and their carers, whether that is within the family or in foster care or through adoption, and sibling relationships.

All government departments will need to understand how policies support family relationships, and document how they have met the families’ test. This means looking at new laws or policies through the prism of, for example, whether it helps parents make the choices about maternal and paternal leave that are right for them, by recognising the roles that both mothers and fathers play in raising families or respecting the vital contribution that grandparents make to family life through their increasing role as providers of childcare.

The Work and Pensions Secretary spoke in the press release of the Government’s commitment, through this initiative, to supporting family life for children and future generations. It could therefore be seen as rather unfortunate that this family test was not brought in earlier, particularly prior to the enactment of the Legal Aid, Punishment and Sentencing of Offenders Act – the act which saw the removal of legal aid from all divorce and children cases except those involving victims of domestic violence or abuse. This legislation led directly to a vast increase in the numbers of people conducting their own family cases in the courts, bringing the already overburdened court system to breaking point. The more people forced to go through the process without legal advice, the more stressful and contentious proceedings tend to become, leading to further deterioration in the quality of the relationships involved, and children tending to be the ultimate losers.

Since LASPO’s enactment, there have been several cases where judges have bemoaned the effect of the legislation on families whose cases they are hearing. A year ago the Court of Appeal had to send back a case for rehearing, because the lack of legal representation and the consequent procedural muddle the parties got themselves into had led to a denial of natural justice. Other cases have been adjourned because lack of legal representation and advice for the parties meant that it would be impossible for there to be a fair trial – a potential breach of human rights.

Most recently the President took a very firm line in a case where the local authority wanted to place the parents’ child for adoption, and they wanted to oppose that. These parents were not eligible for legal aid, and this most fundamental of questions, the legal severing of the parent-child relationship, looked set to be argued in court by the parents (who had mild learning difficulties) without legal advice or representation. Sir James Munby considered that to require the parents to face the application without legal representation “would be unconscionable; it would be unjust; it would involve a breach of their [human] rights …..; it would be a denial of justice.” He refused to hear the case until their legal representation had been sorted out.

Returning to the Government’s new family test, we doubt very much whether the legal aid cuts would have passed the test of family-friendliness when judges are declaring the effect to be contrary to the rights to a fair trial and to respect for family life, as enshrined in human rights legislation. Future policies and cuts may well also fall foul of the test, having negative impacts on family life. It will be interesting to see how this test works in practice.

If you would like to make an appointment to discuss any aspect of family law, we are on 01223 443333.  As a PS, Tricia Ashton is joining Adam, Gail, Sue and Simon as part of CFLP next week, so if you’d like to make an appointment to see her, let us know!

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