Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘family justice

Domestic Abuse Bill 2020

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The problem of domestic abuse has slowly risen up the political agenda over the past few years. For far too long regarded it was regarded as essentially a private matter in which public authorities, in particular the police, were often reluctant to act. However, the indefatigable work of charitable organisations, such as Refuge, have done much to change the minds of policymakers. And it was an issue which the former Prime Minister Theresa May took particularly seriously.

Over the last 2 and a half years, there have been a series of steps leading to reform of the law. 

1. A Consultation Paper, setting out proposed changes to the law, was published in March 2018. This identified 4 objectives for change:

  • promoting awareness – to  raise public and professional awareness
  • protection and support – to enhance the safety of victims and the support that they receive
  • transforming the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
  • improving performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.

2. The consultation was followed by a draft Domestic Abuse Bill in March 2019 which was considered by a Joint Committee of the House of Commons and House of Lords. It set out the following issues which required legislative change. They are:

  • creation of a statutory definition of domestic abuse;
  • establishment of the office of Domestic Abuse Commissioner, and setting out the commissioner’s functions and powers;
  • providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
  • prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and preventing victims from having to cross-examine their abusers) and giving 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;
  • creating a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
  • enabling high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
  • placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
  • ensuring 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;
  • extending the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

3. The consultation on the Draft Bill was concluded in July 2019, and a Domestic Abuse Bill was introduced into Parliament on the same day. However, it fell when the December 2019 General Election was called.

4. In March 2020, a revised Domestic Abuse Bill was published which is now proceeding through Parliament. It is largely the same as the 2019 Bill though a number of proposed clauses have been strengthened. For example, the powers of the Courts to protect victims from being cross-examined by abusers have been enlarged.

The timetable for the Bill provides that it should have passed through the Commons by the end of June 2020. It is likely to have passed the Lords and be given Royal Assent sometime in the Autumn of 2020.

Although I have not linked this initiative directly to Covid 19, as I have done in a number of other blog items, there is a clear link between the two since one of the well-publicised consequences of the Covid-19 lockdown has been a sharp increase in the numbers of people seeking help to protect them from domestic abuse.

I will update the blog on this issue after the Bill becomes law.

For the work of Refuge, see https://www.refuge.org.uk/

A press release relating to the 2020 Bill is at https://www.gov.uk/government/collections/domestic-abuse-bill

Further documents relating to the Bill are at https://services.parliament.uk/bills/2019-21/domesticabuse.html

 

 

 

 

 

 

Written by lwtmp

May 21, 2020 at 12:30 pm

Reforming divorce law

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The current law provides that  divorce can only be initiated by one party to the marriage (the “petitioner”). The other party (the “respondent”) must then acknowledge that they have received (been “served with”) the petition and state whether they disagree with the divorce and intend to contest (“defend”) it. Only around 2% of respondents indicate an intention to contest, and only a handful of such cases progress to a final court hearing in front of a judge.

The law requires a person seeking a divorce to satisfy the court that the legal test of irretrievable breakdown has been met. This is done by citing in the divorce petition one or more of five “facts”. Three facts are based on conduct (adultery, behaviour – commonly referred to as “unreasonable behaviour” – and desertion). Two facts are based on a period of separation prior to filing the petition for divorce (two years if both parties consent to the divorce, or five years otherwise). If one of the five facts is made out, the court must grant the decree of divorce.

A similar regime exists for those couples who have entered a Civil Partnership.

It has long been argued that the need to ‘prove’ irretrievable breakdown in this way too often leads to unnecessary conflict between separating partners, which in turn too often has very harmful impacts on the children of the relationship. It has been argued for many years that – particularly where irretrievable breakdown is proved by conduct – the current law in effect requires one party to blame the other party for the breakdown. In reality, relationships break down because neither party is able to sustain the relationship. Changing the law is, however, politically difficult because many members of the public regard marriage as a permanent arrangement, at least until ‘death do them part’, so that, for those people, it should not be too easy to obtain a divorce.

After many years of campaigning, in 2018 the Government launched a Consultation paper on possible changes to the law on divorce. (Noted in this blog on October 2, 2018). The results of the consultation and a statement of the then Government’s policy for reform were published in April 2019 (Noted in this blog on May 1, 2019). It was said at the time that a Bill would be brought foreward “when Parliamentary time permits”.

This can often be used to delay progress with a measure that might be seem to be politically diffcult. In fact, the present Government – despite all the attention it was initially giving to brixit, and all the attention it is now givng to dealing with the Covid 19 pandemic – published, in January 2020, the Divorce, Dissolution and Separation Bill. The Bill started in the House of Lords, where it has completed all its stages. It is now waiting to be debated by the House of Commons.

The key features of the Bill are that:

  • The requirement to provide evidence of conduct or separation facts is replaced with a new requirement  somply to provide a statement of irretrievable breakdown.
  • The possibility of contesting the decision to divorce is removed, as the statement of irretrievable breakdown is to be taken as conclusive evidence that the marriage has broken down irretrievably. (Divorce proceedings will still be able to be challenged for other reasons including jurisdiction, validity of the marriage, fraud and procedural compliance.)
  • There will be a minimum overall timeframe of six months (26 weeks) for the divorce process, made up of a period of twenty weeks between the start of proceedings and when the application can be progressed to conditional order (there is currently no minimum period between these stages), and six weeks between the grant of a conditional order and when the order can be made final.
  • The Lord Chancellor will have power by order to adjust the initial 20 week time period, subject to the proviso that the total period may not exceed 26 weeks (six months).
  • There will be a new option of a joint application for cases where the decision to divorce is a mutual one, in addition to retaining the current ability of one party to initiate the legal process of divorce.
  • The legal language will be updated. For example, for example the “decree nisi”, “decree absolute” and “petitioner” become the “conditional order”, “final order” and “applicant”.

For further details see https://services.parliament.uk/Bills/2019-21/divorcedissolutionandseparation.html.

Also https://www.gov.uk/government/publications/divorce-dissolution-and-separation-bill

 

 

 

 

 

Written by lwtmp

May 17, 2020 at 3:26 pm

Changing the grounds for divorce – new legislation proposed

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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.

 

 

 

 

Written by lwtmp

May 1, 2019 at 11:39 am

Transforming family justice: current projects – progress reports

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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.

This information has been derived and adapted from Reform Update Autumn 2018, published by HMCTS, and available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

Written by lwtmp

October 3, 2018 at 3:06 pm

Reducing family conflict: reform of the legal requirements for divorce

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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.

 

 

 

Written by lwtmp

October 2, 2018 at 11:16 am

The functions of the family court: the need for joined-up policies?

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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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by lwtmp

September 6, 2018 at 11:50 am

Family justice: reforming public law case procedures

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Hot on the heels of the announcement of on-line divorce applications (see this blog Feb 2 2018), information has just been published as a blog from HMCTS on developments relating to the digitalisation of procedures relating to public law childrens’ cases.

Emma Petty, Service Manager for the Public Law project, writes:

We want to make the 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. Based on our early thinking, the aims of the project could be to:

  • provide an online application process which speeds up the gatekeeping process and shares information with partner agencies at the point of submission
  • improve the process for dealing with urgent applications
  • enable users to see the progress of their case and to take action to progress their case online
  • provide clear signposting to support available outside HMCTS, to assist parties acting in person and without a lawyer
  • enable users to upload and access documents and evidence digitally both outside and inside the courtroom
  • ensure suitable facilities and support are provided at hearing centres
  • enable hearings, where appropriate, to be conducted online
  • provide fast digital access to outcomes of hearings
  • ensure those who need it get the support they need to access our digital services.

Over coming months, the Public Law Project team will be working with practitioners and others involved in these types of case in developing practices and procedures to deliver these goals. This is an important development within the scope of the Transformation of the Justice System policy.

Further detail is at https://insidehmcts.blog.gov.uk/2018/02/07/designing-a-public-law-service-to-meet-user-needs/?utm_medium=email&utm_source=

Written by lwtmp

February 10, 2018 at 12:10 pm