Archive for the ‘chapter 7’ Category
Changing the grounds for divorce – new legislation proposed
Family lawyers have long argued that the current law of divorce, which requires parties to prove that a marriage has broken down irretrievably and force spouses to provide evidence of ‘unreasonable behaviour’ or years of separation – even in cases where a couple has made a mutual decision to part ways – often exacerbates conflict, rather than reduces it. Although very few divorces are contested by the parties, this practice is known to be misused by abusers choosing to contest a divorce purely to continue their coercive and controlling behaviour.
Following a consultation, in April 2019, the Government announced that it would bring forward a Bill, which if enacted, would change the law.
The key features of the proposed legislation are :
- the irretrievable breakdown of a marriage will become the sole ground for divorce;
- instead of a requirement to provide evidence of a ‘fact’ around behaviour or separation, there will be a requirement to provide a statement of irretrievable breakdown;
- the two-stage legal process, currently referred to as decree nisi and decree absolute, will be retained;
- couples will have the option of a making joint application for divorce, alongside the option (existing) for one party to initiate the process;
- the ability to contest a divorce will go;
- a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute), will be introduced.
Proposals for reforming divorce law are always controversial. Critics argue that making it too easy to get a divorce will undermine the institution of marriage. But those who currently deal with divorce on a daily basis see the emotional harm that current arrangements can bring and have broadly welcomed the new proposals.
The Bill will be introduced ‘when parliamentary time permits’.
Further information is at https://www.gov.uk/government/news/new-divorce-law-to-end-the-blame-game which gives links to the consultation on which these proposals are based.
Dealing with domestic abuse: draft Bill published
Given all the time and attention devoted to Brexit, it is perhaps not surprising that other important policy initiatives have not been achieving the publicity they deserve. A good example of this was the publication, in January 2019, of a draft Domestic Abuse Bill.
Domestic abuse is a cruel and complex crime that can affect anyone. It leaves physical and emotional scars that can last a lifetime. It also places a considerable demand on public services. Home Office research estimates the economic and social costs of domestic abuse to society to be £66 billion for victims in 2016 to 2017.
A consultation, launched in March 2018 asked questions on how policy should develop to achieve 4 main objectives:
- promote awareness – to raise public and professional awareness
- protect and support – to enhance the safety of victims and the support that they receive
- transform the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
- improve performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.
Following the consultation, the Government has defined 9 measures that require legislative change – which is the focus of the draft Bill. They are:
- create a statutory definition of domestic abuse
- establish the office of Domestic Abuse Commissioner and set out the commissioner’s functions and powers
- provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
- prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress
- create a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts
- enable high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
- place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
- ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy
- extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.
As the Bill has been published in draft, it is unlikely to become law until 2020 at the earliest.
For further detail see https://www.gov.uk/government/publications/domestic-abuse-consultation-response-and-draft-bill
The Home Office research is at https://www.gov.uk/government/publications/the-economic-and-social-costs-of-domestic-abuse
Information on the Domestic Violence Disclosure Scheme and related guidance (which was updated in December 2016) is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf
Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee
I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.
Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.
Between November 2018 and February 2019, MoJ and HMCTS published no fewer than 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.
The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.
Other responses deal with:
- the impact of the transformation programme on users;
- engagement with stakeholders;
- the financial implications of the transformation programme on the wider justice system;
- evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
- balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.
Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023. (See https://www.lawgazette.co.uk/news/breaking-hmcts-delays-1bn-courts-reform-by-a-year/5069501.article)
There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals
This links to each of the six individual responses.
In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.
Understanding Courts – a report from JUSTICE
In January 2019, the Human Rights Group JUSTICE published the report, Understanding Courts. It was the work of a group chaired by Sir Nicholas Blake.
The central message of the report – which builds on other reports published over the last few years by JUSTICE – is that going to court can be a confusing, intimidating and disempowering experience for lay people, whether as parties, witnesses or jurors. This is only compounded for people who are unrepresented, and for otherwise vulnerable people.
This report argues that, in the context of the current programme of reform of courts and tribunals, lay people should be put at the heart of court processes. The objective is to encourage meaningful access to justice through effective participation.
There are 41 recommendations in the report which focus on what effective participation should mean in practice. In broad outline, the key issues are that
- lay people should be informed about what will happen at their hearing through advance information provided by multiple means;
- court professionals should recognise that lay people should be their primary focus and adapt their approach accordingly;
- case management should ensure that lay people understand processes and assists with that understanding;
- legal jargon and confusing modes of address should be avoided, using plain English alternatives;
- there needs to be a change in professional culture that can otherwise exclude lay people;
- there should be appropriate adaptations to enable participation by children and those with a disability; and
- there should be support for all users who need it.
It is an interesting report, which deserves to be taken seriously. But I have the specific comments to make.
1 Tribunals have long espoused the key principles set out in this report. There is mention in this report that the user focus of tribunals needs to be brought into the court system. If this report has the effect of stopping (court) judges regarding tribunals as second class courts, rather than as first class dispute resolution forums, then it will have served a useful purpose.
2 There are many recommendations in the reports about ensuring that information provided by courts is user-friendly and up to date. This again is welcome but this is a message that has been developed on many occasions over recent years. Now is the time to get down to the hard work of developing user-friendly information and forms that really do enable individuals to improve their access to justice – using the potential of IT to the full.
3 If the change of culture recommended in the report is to be fully realise this has a significant implication for the training, not just of the judiciary, but also of court staff and other legal professionals. The recent spate of press stories about bullying judges is extremely worrying – it is hard to see how a bullying judge would have the empathy or patience to adopt the approach outlined in this report. Judges already in post will need as much training in the interpersonal skills required to change court culture as those coming new to the role.
The full report is available at https://justice.org.uk/our-work/areas-of-work/what-is-a-trial/
Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review
In June 2018, I noted here the critical report from the National Audit Office – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.
The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.
The PAC found, in summary:
- It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
- It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
- Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
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The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
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It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
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The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.
In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.
In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.
In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.
The Government has just announced that it has agreed to all the PACs recommendations.
As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.
I will keep readers of the blog posted as and when new material is published.
The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm
The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf
Transforming family justice: current projects – progress reports
There are currently six projects associated with the Family Justice system.
1.Online divorce
This project aims to deliver a transformed national end-to-end digital service for individuals and their legal representatives to make an application to legally end their marriage or civil partnership and resolve associated financial issues.
The first stage – supporting applications for uncontested divorce, and allowing digital upload of marriage certificates – was rolled out nationally from 30 April 2018. By mid-September 2018, over 13,500 on-line applications had been received. Fewer than 1% of applications have contained errors that meant they needed to be resubmitted, compared to over 40% of the old paper forms.
The Government is now testing an online system, to be used by legal representatives, for Financial Remedy consent orders.
2 Online probate for personal applicants
This project aims to provide a digital, user-designed application form and a new case management system to actively manage probate applications. The project will create a simpler, digital process for users, as well as reducing the cost and time spent processing applications. To date the service has received 3,862 applications with just over 3,194 grants of probate having been issued.
3 Family public law
This project will make the family public law process more efficient, ensuring the court, parties and their representatives have access to the right information, at the right time, to help decide the best outcomes for children involved in public law cases.
In particular, it will allow evidence to be submitted and shared electronically and cases can be managed much more securely and effectively.
It will also allow orders to be written and produced in real time in court (in many cases), meaning that everyone leaves with immediate clarity on what has been agreed.
The first parts of the new system to be developed are now being tested.
4.Adoption
Following the first stage of the work on family public law, there is a project to digitise the adoption process for both public and private law cases, again developing systems to manage these cases more securely and effectively. Once all the parts are complete, they will fit together so that cases can move seamlessly from one to another.
The plan is for this work to start imminently and to run alongside the public law service development.
5. Court of Protection
This project will be to enable people using the Court of Protection to initiate and manage their cases online. This work will begin in Spring 2019.
6. Private Family Law
Later, the project will move to develop and implement systems and processes to enable private family law litigants to initiate and manage their cases online – again, fitting together seamlessly. This work is expected to begin in Summer 2019.
Transformation: Court and Tribunals 2022 – progress reports
I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.
For some time there has been an occasional blog, setting out information about a number of initiatives.
In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct 2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.
The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.
The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).
I will be adding further detail on these projects, dividing the information into broad subject headings.
The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.
The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf
The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/
Reducing family conflict: reform of the legal requirements for divorce
At present, divorce law requires people seeking divorce must show that there has been irretrievable breakdown in the marriage. To do this they must give evidence of one or more of 5 facts; 3 are based on ‘fault’ (adultery, unreasonable behaviour or desertion) and 2 are based on a period of separation (2 years’ separation where the other spouse consents to the divorce, or 5 years’ separation where the other spouse does not consent).
In practice, only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these 2% of respondents, only a handful go on to contest (“defend”) the divorce at a court hearing. This means that, under the current law, a spouse who wishes to divorce can already be certain of doing so in practice, regardless of the other spouse’s wishes, provided that the petition establishes irretrievable breakdown.
There are domestic abuse cases where the current grounds for divorce can be used in a coercive way.
Proposals detailed in the consultation include:
- retaining the sole ground for divorce: the irretrievable breakdown of a marriage
- removing the need to show evidence of the other spouse’s conduct, or a period of living apart
- introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
- removing the opportunity for the other spouse to contest the divorce application
The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute) (currently 6 weeks, one day). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.
The Consultation runs until mid-December 2018.
The Paper can be accessed at https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/.
A detailed Press Release is at https://www.gov.uk/government/news/justice-secretary-confirms-plans-to-reduce-conflict-in-divorce
Although there has been considerable public response to these proposals, it can be anticipated that at the end of the consultation dissenting opinions will be heard. The paper has also been criticised for not addressing other issues arising from relationship breakdown, in particular affecting couples who have not married or engaged in a civil partnership.
The functions of the family court: the need for joined-up policies?
Shortly before his retirement from the post of President of the Family Court, Sir James Munby gave an extremely interesting lecture at the University of Liverpool about what he regarded as the failings of the current family court system.
He developed two principal arguments. The first focussed on what might be called the core functions of the family court; the other offered a more ‘holistic’ vision for the family justice system.
In relation to the first, Sir James noted that the core functions of the family court involved three key issues
- determining questions of status – were a couple married or in a civil partnership or not;
- determining what should happen to the children of marriage; and
- determining the financial consequences of family breakdown.
He argued that the procedural rules and practices in relation to each of these questions were complex and resulted in potentially people having to go to court on more than one occasion to resolve their issues. Despite the unification of the family court under a single name, it did not and could not in practice operate as a ‘one-stop shop’.
It could be argued that these days questions of status were increasingly being determined on a ‘self-help’ basis (which would increase if the basic law on divorce were to be reformed and simplified) ; and that financial matters were being decided in special financial proceedings meetings taking place outside the formal court structure. Thus the courts were increasingly used for determining questions relating to children. But these trends should not mean that the issue of whether the family court could become more of a one stop shop should not be investigated more closely.
It was the second set of arguments – for a more holistic approach to family justice – that I found interesting. Sir James is a keen advocate of ‘problem-solving’ courts – courts that have the resources and expertise to try to deal with all the problems families may face (including, for example, criminal matters or public law issues such as immigration status) – so that families can obtain a secure basis on which they can build their future lives.
This is an interesting argument and reflects (although Sir James may not have been aware of this) research and policy development a number of years back which argued that people don’t have discrete problems (e.g. housing, or employment, or family – which are categories created by lawyers which don’t reflect how life is actually lived) but ‘clusters’ of problems. This led to interesting experiments, now regrettably abandoned for the creation of Community Legal Advice Centres or Community Legal Advice Networks, that could deal with clients in a ‘holistic’ faction.
These views are controversial, at least for lawyers, since they would mean cutting across long established categorisation of the justice system – into criminal, civil, administrative and family justice system – each with their own practices, procedures and traditions. For this reason, my hunch is that Sir James’ views may not be taken forward, at least in the short-term.
But I thought his arguments were rather refreshing, and worth thinking about.
You can read his lecture at https://www.judiciary.uk/wp-content/uploads/2018/05/speech-by-pfd-what-is-family-law.pdf
The future of Family Drug and Alcohol Courts
For a number of years, Family Drug and Alcohol Courts (FDAC) have existed in a small number of court locations in England. Inspired by a model developed in the USA, Judge Nicholas Crichton thought that such courts could offer a ‘problem-solving’ approach for families caught up in the justice system, because of the negative interactions between the use of drugs or alcohol and the treatment of children. If parents could be helped to kick their habits, it was argued, this might enable families to be kept together, rather than divided with children being taken into care.
Although judges and ministers like the concept, the roll out of the concept has been left very much to local initiatives. In 2015, a FDAC National Unit was created to support existing schemes (there are currently 10 teams, working in 15 courts, service families in 23 local authorities) and to encourage the development of new schemes.
In June 2018, the National Unit announced that it would have to close, as central government funding was being withdrawn from the Unit. Since then, a firm of solicitors has stumped up £12,500 for 3 years, and is leading a fundraising campaign to obtain the £250,000 needed to keep the Unit open.
The schemes themselves are also funded on a cash limited ad hoc basis. For example, in October 2017, £6m was awarded to the Tavistock and Portman NHS Foundation Trust to enable the work of FDAC teams to be extended to more boroughs in London. The grant was made from the Government’s Life Chances Fund.
There is evidence that, where they exist, schemes deliver savings to the taxpayer (by reducing the costs of keeping children in care, for example.) But it seems that there is still someway to go before use of the approach will be rolled out on a national basis, and funded on a secure recurrent basis.
Further information on the FDAC National Unit is at http://fdac.org.uk/.
News about the private funding initiative is at https://www.thetimes.co.uk/article/law-firm-steps-in-to-help-save-family-drug-and-alcohol-court-mtk6jrtxd.
News about the grant from the Life Chances fund is at https://tavistockandportman.nhs.uk/about-us/news/stories/problem-solving-family-drug-and-alcohol-courts-fdacs-support-more-families-6m-life-chances-grant/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 