President’s ‘View’ 13: The process of reform - an update

The President of the Family Division, Sir James Munby, has set out the next steps in the on-going process of reform. Key aspects are:

Working Groups

The Financial Remedies Working Group chaired by Mostyn J and Cobb J has produced its first report, dated 31 July 2014. The Children and Vulnerable Witnesses Working Group chaired by Hayden J and Russell J has produced its first report, also dated 31 July 2014.

The work of the Family Justice Council Working Group chaired by Roberts J, carrying forward the Law Commission’s recommendation that authoritative guidance on ‘needs’ be produced by the Family Justice Council, is well advanced. The President will publish its report as soon as it is available.

Transparency

The President has published a consultation paper: Transparency - the next steps, as foreshadowed in his last ‘View’ and encourages everyone with an interest in this important topic to let him have their observations. Responses should be sent to Andrew Shaw, by email to Andrew.shaw@judiciary.gsi.gov.uk.

The Family Justice Young People’s Board

The President has drawn attention to the work of the Family Justice Young People’s Board (FJYPB) and the importance of listening to their highly relevant and often thought-provoking views. See here for the speech of the Family Justice Minister, Simon Hughes, the FJYPB’s second annual conference took place on 24 July 2014 when he announced the government’s commitment that children and young people involved in family court proceedings will have access to judges to make their views and feelings known. The President has expressed his support for the government initiative and is working with the FJYPB to make a reality of the vision set out in their draft National Charter for Child Inclusive Family Justice.

Experts

The pilot scheme in relation to DNA and hair-strand testing for substance abuse is now up and running in the Bristol and Taunton DFJ areas. All the reports are that the pilot is progressing well. The President hopes it will validate the pilot model for the provision of funding for such tests by the Ministry of Justice under arrangements administered by CAFCASS.

The President refers to two other issues relating to experts:

• the particular problem in relation to the experts in highly specialist disciplines whose involvement is absolutely crucial if ‘baby shaking’ and similar types of case are to be determined fairly and justly – the President is having on-going discussions with officials and Ministers but there is, thus far, nothing positive to report, and
• that the wider issues in relation to the funding of experts whom the court has found, in accordance with section 13(6) of the Children and Families Act 2014, to be ‘necessary’ to assist the court to resolve the proceedings ‘justly’, remain unresolved.

Legal aid

The President referred in his previous ‘View’ to the judgments of Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam) and of HHJ Bellamy in Re R (Children: temporary leave to remove from jurisdiction) [2014] EWHC 643 (Fam). The sequel to the first is to be found in the judgment of Judge Bellamy in Kinderis v Kineriene (No 2) [2014] EWHC 693 (Fam) whose  judgment in Re R is complemented by his more recent judgment in Re AB (A Child: Temporary Leave to Remove From Jurisdiction: Expert Evidence) [2014] EWFC 2758. The sequel to the judgment of HHJ Wildblood QC in Re B (A Child) (Private law fact finding – unrepresented father), D v K [2014] EWHC 700 (Fam), to which the President also referred, is to be found in the President’s judgment in Q v Q [2014] EWFC 31.

The President explores these issues further in his View referring to a Seminar at University College, London: Litigants in Person: What can courts do?, chaired by Professor Dame Hazel Genn on 18 June 2014. He says that for the family judges who were present, the most interesting presentation was by Bonnie Rose Hough, of the Center for Families, Children & the Courts, of the Administrative Office of the Courts of California, who spoke on Building the Capacity for Justice System Innovation which the President considers merits very careful consideration by everyone with any concern about the plight of litigants in person in our family justice system.

Divorce

In April 2014 the President floated various ideas about divorce law reform. In his speech in the President’s Court on 29 April 2014 he referred to the need to reconsider practice and procedure in financial remedy cases. In relation to divorce, he said:

‘Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground? Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce? Indeed, may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?’

The President has clarified that what he had in mind were four quite separate issues:

• The issue of practice and procedure in financial remedy cases including the need to adapt processes in financial remedy cases to the new world of those who, not through choice, have to act as litigants in person; the need to encourage and facilitate the use of out-of-court methods of resolving financial disputes, whether by mediation, arbitration or other appropriate techniques; examining whether there is any scope for more closely aligning practice and procedure in the three major types of financial remedy cases: those following divorce (or dissolution of a civil partnership), those under Part III of the Matrimonial and Family Proceedings Act 1984, and those under Schedule 1 to the Children Act 1989; and the review of all the application and other forms used in financial remedy cases to see whether any adjustments are appropriate and to create a comprehensive body of standard form orders for use in such cases.
• The proposal to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as, following the repeal of section 41 of the Matrimonial Causes Act 1973, the process of divorce from the process of adjudicating disputes about the children following divorce has been uncoupled – the President emphasises that that would not affect in any way either the substantive law of divorce or the substantive law relating to financial remedies, nor, from the point of view of the parties, would the process of divorce be made any easier. It is simply a proposal that there should be two separate sets of proceedings, one for divorce and the other for financial remedies following divorce, each with its own separate case number and court file. HMCTS is, with the President’s active support, proceeding to centralise the handing of divorce petitions, concentrating this work in a limited number of locations where petitions will be issued and all special procedure divorces will be processed. Ultimately, it may be that the process could be centralised in a single national centre. These administrative changes – desirable in terms of streamlining the process, making more efficient use of resources and reducing administrative costs – can surely be facilitated and enhanced by the administrative uncoupling of the two processes. It is an issue being considered by the Financial Remedies Working Group chaired by Mostyn J and Cobb J.
• There is the issue of legislating to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground. This is not a matter within the remit of the Financial Remedies Working Group. It is a change to the substantive law that would require primary legislation. It is therefore a matter for Parliament.
• There is the question of whether there should at least be consideration of whether the process of divorce still needs to be subject to judicial supervision. This is not a matter within the remit of the Financial Remedies Working Group. It is a change to the substantive law that would require primary legislation. It is therefore a matter for Parliament. In the President’s press conference on 29 April 2014, he elaborated the point: ‘there are countries where the system is that a divorce which is by consent and where there are no children is treated as an administrative matter dealt with by what, using our terminology, one might describe as the registrar of births, deaths, marriages and divorces. It seems to work’ (see Solovyev v Solovyeva [2014] EWFC 1546).

The President also notes that the question has been raised as to whether any of these issues would impact upon the important protections arising under the Divorce (Religious Marriages) Act 2002, inserting what is now section 10A of the Matrimonial Causes Act 1973. He says that the short answer is that, so far as he is concerned, nothing must be done to affect the operation of this very important provision. Steps must be taken to ensure that no procedural or other changes indirectly or inadvertently prejudice the interests of those who might wish to take advantage of section 10A.

Other developments

A revised version of the social work evidence template for use in care cases has been produced under the aegis of the Association of Directors of Children’s Services. It may require further adjustment in the light of practical experience but it is a valuable tool whose use the President recommends. The templates can be accessed here.

The Advicenow Action Guide Applying for a financial order without the help of a lawyer has now been published. Written with assistance from the Family Justice Council, the President commends it as an excellent guide to financial proceedings for litigants in person. Applying for a financial order without the help of a lawyer is a daunting task for anyone. He believes that this guide provides the sort of help that litigants in person need and presents complex information in an accessible way and that it should be brought to the attention of all litigants in person who appear before the courts in financial proceedings.

Orders

The President has circulated for discussion and comment a further batch of draft orders prepared by Mostyn J’s family orders project for use in the High Court. The full use of standardised orders is still impeded by the inadequate state of the IT available to judges and courts. In the medium and long term the only solution is the provision of modern, up-to-date, IT. In the meantime, the President says, we have to do the best we can with what we have. District Judge Geoff Edwards has up-dated his invaluable templates, which have long been appreciated by so many judges, to provide an interim solution for some of the most immediately pressing problems. The President was thus able very recently to send out news of his template program for completion of CAP 02 and 03, which is now available to the judiciary. It should assist greatly in reducing the time judges and court staff are spending on completing the existing orders.

Geraldine Morris is a solicitor and Head of LexisPSL Family.

Twitter: @GeraldineMorris

See here for more practical guidance on family law reform and to arrange a free trial of LexisPSL Family.