Family law practice and procedure in the 21st Century: fit for purpose?
By:7 commentsApril 21, 2016
This evening Marilyn Stowe had the great honour of delivering the prestigious Mark Bailey Lecture 2016 at the Grammar School at Leeds. This now annual series of lectures aims to inspire and engage its audience.
Ladies and Gentlemen
You should never judge a book by its cover. I may not appear to be an obvious champion of social justice but as this school knows, the only comment worth repeating on my school leaver’s report is that I had an interest in social work.
I still do, and in particular in my field as a family lawyer. I thought I was swimming alone against the tide with opinions which I don’t hesitate to publish on my blog, but I have been greatly encouraged by a book entitled Delivering Justice in the 21st Century edited by Maclean Eekelaar and Bastard, leading academics in the family justice field. Professor Hilary Sommerlad of Leeds University deserves special mention. In this book they express “their anxieties about the ability of individuals to achieve fair and informed resolution in family matters in England and Wales where legal aid for private family matters has largely disappeared” and I recommend it to anyone this evening that has an interest in the subject.
The title of my lecture is Family Law Practice and Procedure in the 21st Century –Fit for purpose? And I will leave it to you having heard me, to decide. I am very willing to answer questions at the end of my lecture which is limited to England and Wales. Scotland and Northern Ireland have their own separate jurisdictions and laws.
What I intend to do in this lecture is explain about the people and their problems we family lawyers routinely come across, the laws to be applied and then consider what happens in practise.
But first, some history. The wonderful (and I use that adjective advisedly) current Supreme Court family Judge, Lord Wilson, gave an address entitled Out of his shadow, the long struggle for wives under English Law in Oxford in 2012.
I have all the time in the world for Lord Wilson. He is a pragmatic, decent, fair judge and can be relied upon to always come up with the right decision. He is a great asset of the Supreme Court. His talk can be found on the Supreme Court website, but to paraphrase, he traced from before the Norman conquest onwards the development of something we today wouldn’t recognise in the slightest as family justice, and the treatment of women, until a body of law existed which was intended to be fit for purpose. In fact it took a thousand years, until the year 2000 for the House of Lords to finally declare in the famous case of White v White that no distinction is to be made in law between the homemaker and the breadwinner.
How has the law changed for women?
Anglo-Saxon woman actually did fine until the Norman Conquest. She could own her own property and she had the right to the keys of “the storeroom, the chest and the coffer” – she had the cash and the power.
After the Normans came, bringing with them the French system, there arose the phrase and principle of femme couverte – the covered wife – and from then on the wife was covered, in the shadow of her husband, invisible in law. The last vestiges of the femme couverte remain even today, when on marriage a wife usually takes her husband’s surname.
On marriage everything a wife had became her husband’s property. On a recent trip to India, I learned that for Charles II that included on his marriage to Catherine of Braganza, Bombay. A wife couldn’t sign a contract. The law didn’t recognise her ability to do so. But in the 17th Century, the law changed slightly out of necessity when a wife was deserted. She had to live. Provided she hadn’t committed adultery – and a husband had a right to publicly advertise the fact – a deserted wife could enter into a contract to go shopping, which was called “an agency of necessity”, to pledge a husband’s credit to pay. And when was that finally abolished? 1971.
The thinking behind keeping the little woman covered, was over time, genuinely paternalistic. In 1773 Sir William Blackstone, the great jurist, said in his Commentaries of the Law of England:
“The disabilities which the wife lies under are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.”
And he wasn’t being funny.
When was divorce introduced?
But because of the injustices suffered by women, the Judges began to act, first through the ecclesiastical courts and thereafter from 1857 when the Family Division in the High Court began. Treatment of women was so unfair the courts found ways of mitigating against couverture, although divorce itself wasn’t permitted until 1837, except for the very rich who could obtain an Act of Parliament. Lord Roos thus divorced Lady Roos in 1670, and another practical alternative from 1700 to 1850 was literally the sale of a wife by public auction. A desperate wife might consent to this. Her husband would literally put a rope around her neck and lead her to auction often for a leg of mutton. But as he kept the children many desperately unhappy wives simply stayed put.
It took until 1882 for women to achieve property rights in a law called the Married Women’s Property Act which still exists today. In 1925 the Guardianship of Infants Act was passed so that issues about children were resolved in a child’s best interests. In divorce it took until 1973 for the Matrimonial Causes Act to finally set out one sole ground for divorce – the irretrievable breakdown of marriage proved by one of five facts, by either party. Fault remained for both sides to get an immediate divorce and this divorce law has endured unchanged from 1973 to the present day.
Family life for women
It can certainly be seen that for a woman, typically the child carer, the homemaker, the lower earner, it has taken over 1000 years for her to achieve equality in family law and to be able to freely access the courts.
During my lifetime, there have been greater changes to society than ever before, mainly I suppose, because in 1960 of the availability of the contraceptive pill. Women could thereafter live a life style they chose, not imposed upon them. They could go out to work, study, hit the heights in every field. But let’s not overlook that for most women having a family would and still does put them almost back to square one, the homemaker, the child carer and financially dependent on their partner.
We the Baby Boomers, are the first post war generation of achievers who have said “yes, we can” and untroubled by war, we’ve worked hard and had fun along the way, to get it. We’ve been followed by Generations X Y and Z – generations of people even further removed from war than us, who have grown up in the most material of times beyond the most fanciful dreams of our forebears. So much so, that today, if you want it, you just go out and get it or someone will give you it. Nothing much is off limits.
Back when I was growing up, not far from here, I lived in a crescent of semi-detached houses off Street Lane, and in each house on the street there lived two married opposite sex parents and their two or three children. Women stayed at home and men went out to work, returning to find dinner on the table.
There were plenty of social and legal stigmas. Sir Tom Jones recently gave an interview on the BBC when he said his underage girl friend became pregnant in the 1950s. Both their parents had to consent to their marriage, but he said in those days there was no choice. She was pregnant and they had to get married or the child would have been illegitimate.
Modern day family types
Compare and contrast the change in society today, only 50 years later.
The ONS statistics for 2015 show 18.7 million families in the UK. 12.5m families are married with dependent children, but now there are 3.2 million cohabiting couple families and 3 million single parent families.
That means 30 per cent of all families in this country no longer include a married family and the fastest growing family of all is the unmarried, cohabiting family.
Let’s drill down further into those figures.
The figures include same sex married couples, or those in a same sex civil partnership. Civil partnership has the same effect as marriage, but there is a different procedure for entry into one. It was introduced in 2004 and is not yet available for opposite sex couples. Same sex marriage was introduced in 2014.
The cohabitation figures also include same sex couples with or without children.
They include families where the parents have been divorced and chosen to either cohabit or marry another partner.
The figures include people who are transgender. Gender is an entire, highly sensitive legal topic in itself. The figures include people who are not at odds with their gender, but are cross dressers or transvestites. Some are people you would never imagine for a moment if you saw them in the street, but behind closed doors, husband may dress exactly the same as his wife.
Parents and children in modern day families
What of the children in all these assorted families, whether living with a single parent or several parents or people acting in loco parentis? The children in a family might be fostered and thus legally in care of a local authority. They may be very damaged children physically and mentally. Or they may be high achievers who happen to be in care and thriving from it.
The figures include children who have been born to married or unmarried cohabiting or separated parents, and children who are living with a step parent and parent. They may be living with a grandparent or more distant relatives. Or they may have grandparents or other relatives desperate to see them but who cannot.
The children of a family might be adopted, by their parent and step parent who are married or unmarried. They might be adopted by a single parent. They might have been adopted from unknown biological parents via a process in this country or abroad. The possibilities of their biological and legal parentage are many.
The family might not be originally from this country, they may lead truly transnational lives and it is difficult to pinpoint where they permanently reside. One parent might live in another country or also perhaps in another town or city, and his or her children move between the family units here or abroad. Or sadly, the parent living elsewhere may have deliberately chosen not to see his or child at all, or worse is being prevented from seeing his child.
The family might include cousins and a mixture of relations all living the same home.
The family might well include more than one wife. Polygamy is legal in some countries but not in ours. However people in polygamous marriages live here.
Or the family might include a couple who think they’re married because there has been some form of ceremony, but in our law they aren’t. They might be living in a marriage which we call void perhaps because they had no capacity to enter into it being too closely related. Or it might be voidable perhaps because it was entered into under duress. It might have been a forced marriage. Or it might just be a non-marriage because nothing about the ceremony bears any resemblance to what we would recognise in law as a marriage at all.
The family might be comprised of parents in what we call a “limping marriage” divorced in one legal system, yet considered still married in another. This can happen when the parties need a religious divorce.
Then there are the most modern families of all. We live in a material age of “we can have it all” and that applies too even to designer babies. There are families where there are more than two parents, where babies have been created at will. Originally intended to assist childless couples, it has gone well beyond that, to cater for everyone who wants a baby.
It is now possible for single people and couples whether same sex or opposite sex to have a child which biologically may or may not be genetically related to them. Thus some families will have children growing up completely unaware they are not biologically related to their parents. The children may even meet and have relationships with people who are their siblings and they will not know. Sexual attraction between close relations who meet out of the blue, is a recognised phenomenon of our modern “have it all” society.
Surrogacy laws in the 21st Century
In some cases a child will have genetic parents, who may not have any legal relationship with each other, but whose gametes are used to create a child in a test tube, then implanted into a host mother, a surrogate. She will give birth to a child, in this country or abroad. In English law despite her having no genetic relationship to the child she carried, she is nevertheless legally the child’s mother and if she is married, and he agreed to the treatment, her husband is the legal father. In other countries legally they are not. The commissioning parents are the legal parents. So in English law a child born abroad to a surrogate may have legal parents in one country and none over here where he is intended to live.
We even reached the stage last year where it was possible for a gay son who wanted his own child, to artificially fertilise a donor egg which was then planted into his mother’s womb and for her to carry and give birth to her son’s child. In English law she and her married husband are treated as the lawful parents of the baby. For the son to become sole legal parent he had to adopt the child. And thus the son’s parents transitioned from legal parents to legal grandparents and the child is left with a genetic and adoptive father but he has no mother.
And what kind of lifestyles do people lead in all these different families? It’s far from easy nowadays to cope with the “have it all” ethic, the new collective worship of all that is material that may have replaced traditional religion for many and has led to the breakdown of the family, to more divorce, to more cohabitation, to more lone parents and to more unhappy children growing up in far from ideal circumstances.
But has the law kept up with the pace of this tsunami of change in our society which created more family law problems to be solved than ever could have been foreseen fifty years ago?
I would say on the whole, it has. It’s not perfect, it’s certainly prone to criticism. Divorce reform is long overdue, but what is undeniable is there is now a vast body of family law and family case law which has developed over the last fifty years because of those changes, that rivals and arguably exceeds any other form of jurisprudence practiced in our courts.
The law for 21st Century families
Let’s take a quick look at the range of family law which now exists for our 21st Century families. What follows is not an exhaustive list:-
We have law that enables certain types of marriage and law that regulates the breakdown of any marriage. Lord Wilson gave another excellent speech entitled Marriage is Made for Man not Man for Marriage in February 2014, available on the Supreme Court website, when same sex marriage was about to become legal in this country. It is another brilliant speech in which he demonstrates how across countries and down the ages marriage has been devised to suit social circumstances. Thus marriage between a child and an adult is legal in some societies. Marriage between first cousins in Bangladesh and Pakistan occurs in about half the marriages that take place but is prohibited in other countries, but not ours. In France he gives an example where it was permitted for a living person to marry someone who was dead.
There is law that regulates the treatment of children in the public law sector, and in private disputes. At all times the welfare of the child is paramount. The cases that come before the courts are from all extremes, some are deeply tragic. From permanently removing a child from its parents, to deciding whether 15 year old Rocco should live with Madonna or Guy Ritchie, to deciding the housing and child support a billionaire should provide for the son he refuses to acknowledge.
Disagreements constantly arise;- for example in private children cases how time should be divided between parents, (and I have had my runins with Fathers for Justice), but in my opinion the Children Act 1989, still in force today, gives the court wide discretion to determine the best interests of the child and despite concern as to whether it is too child-focussed rather than family focussed, overall it does work.
There is now law to regulate surrogacy that too has its modernisers because in only a few years surrogacy has become more mainstream and there is also specific law to regulate treatment by IVF. This includes permitting a widow to be inseminated by the sperm of her deceased husband.
Eurpean laws involving children
We are signatories to wide bodies of EU law. EC Regulation 2201/2203 (Brussels II bis) now permeates the whole of family law. Article 8 is the cornerstone of jurisdiction over children. Article 3 is the cornerstone of jurisdiction on divorce and which requires a race to issue proceedings, and whoever issues first in the EU country will hear a divorce but also the finances. And financial law can differ massively across the EU.
We have also signed worldwide treaties so as to regulate the abduction of children to and from a vast number of countries worldwide. The Hague Conventions of 1980 and 1996 come to mind.
EU law is not the same I should point out as the European Convention on Human Rights which came into force in 2010 as a result of which there was added yet another complimentary layer to our jurisprudence.
The right to private family life
When this happened, I was invited to give a speech at the family law conference held by the University of Staffordshire in Stoke and I chose for my subject the tension between certain articles in the ECHR. The right to respect for private and family life in Article 8 balanced against the right to freedom of expression in Article 10.
I was concerned by the tendency to keep private, public law cases involving local authorities and children, yet widely publicise private family law cases, particularly in relation to money. That has got much better recently for public law cases as a result of the work done by the President of the Family Division Sir James Munby – judgements can be widely read, albeit anonymised as it should be, but even worse in private cases, with one judge openly declaring that if parties in a financial dispute do not settle, he will publish warts and all. And by sticking to his word, in my view he has damned them. We live in dangerous times.
Anyhow, it was a small conference at Stoke, a relatively new university. I was told about 25 people would be there, no more. I gaily went along clutching my speech. I opened the door to find 25 people there: several law professors I recognised from their photographs, a distinguished Law Commissioner who might herself one day make it to the Supreme Court but worst of all, sitting quietly on the third row at the back, a man I immediately recognised from his photograph – and I did a double take. Yes it was Lord Wilson. No time to flee, I could only straighten those wobbly knees, smile and hope all would be well. And it was.
In my own particular field, finances in divorce, I have been amazed at how the Matrimonial Causes Act 1973 can still govern finances, and still work, in such changed circumstances, for all couples, no matter their circumstances – but it does.
That is because the court must take into account the relevant factors, all of which are set out at Section 25, and apply them to each case as it thinks fit. Judicial interpretation and discretion is critical to the smooth operation of the law.
Even though times have changed the law has stayed the same but its interpretation has changed. I’ve represented clients through the glamorous years of the Royal divorces and the “millionaires defence” raised by Baron Thyssen, when reasonable requirements were met out of vast fortunes which remained largely intact, until that reached its zenith when a US woman received only £8.5 million out of £400 million. Things had to change and thus in White v White what needed to be said was said by Lord Nicholls in the House of Lords, and the principle of equal sharing became the starting point after reasonable needs have been met. And at the same time pension sharing came into effect which made a vast differences to the future of older women. It was surely a high point for the women or the poorer party (not always the woman by 2000) but it had taken 1000 years to get parity.
And applying the same factors of the same law, it works too for all those whose wealth is modest. For most people, reasonable needs can only just be met out of all the income and capital of the parties, and a 50/50 outcome is not always the case. Spousal maintenance can also be ordered for such period as the court thinks fit.
In all cases no matter the level, full frank honest and continuing disclosure is required and stringently enforced by the court, so justice is not only done but seen to be done. But overall with this vast body of law, it requires skill and knowledge of the law to ensure fairness is done by the arguments of lawyers on both sides and ultimately by the Judge for each family. The law is designed that way.
For the short marriage, the long marriage, young and old, the very poorest and the billionaires, all those with different needs, obligations and responsibilities, for those with disabilities, those who do work and don’t want to work, for those with matrimonial and non-matrimonial assets, there is law.
For those with assets that might be disclosed in the Panama papers there is law. Trusts, companies, on shore or off there is law. There is law about how to treat a lottery win. How to deal with mistake and how to deal with fraud. How to regulate a pre-nup and a postnup which are becoming common, particularly in transnational cases and second marriages. There is law how to deal with one party who is dying. And ultimately the law is applied in each case differently, with the Judges using their discretion. It demonstrably works.
What we strikingly don’t yet have, is law about cohabitation, despite all those cohabiting families and it being the fastest growing type of family in our country. A woman who has lived with a man for 20 years can make no claim against him if he decides to trade her in for another model. Her sister married for half that time can do so. Why so?
I was a member of the Legal Advisory Group to the Law Commission in 2007, which called upon Government to provide specific cohabitation law -not, I stress, the same as divorce but some recompense for qualifying couples in a suitably long relationship or where there were children. And although it’s law in Scotland, nine years on, despite the obvious need, it’s been deliberately ignored by government after government.
How has legal aid changed?
My lecture this evening is not only about family law in the 21st Century, but also about practice and procedure. Who do members of modern families approach for advice and help to resolve their host of legal problems?
Family lawyers. We have to meet stringent standards to practice and advise clients, which is unsurprising given the variety of client and work that comes their way. Not only do they mostly study at university, they have to sit professional exams and undergo a period of professional training. It takes around six years to qualify as a solicitor, immersed in this subject and others. Throughout their career, solicitors must continue their professional development. They are subject to more regulation than any other body I have ever come across. I was appointed in 1998 to head an accreditation system of family lawyers by the Law Society. It was incredibly successful and we had over 5000 accredited members, who had met a demonstrably high standard when I left six years later. Accreditation was necessary to do legal aid work.
Lawyers don’t rush every case to court. They know how to negotiate and know how to settle. It takes two to tango but not every client wants to settle especially in the cases that make the papers, if there is a lot of money involved and it might be worth the costs to take the risk because the general rule in finances is each side pays their own costs. On the whole though, in the real world, lawyers do settle their cases. In my firm I think our settlement rate is about 98 per cent before a final hearing.
But that brings me to where things have begun to go horribly wrong and we are starting to go full circle back to the injustices of the past.
Access to lawyers and thus informed legal advice has been steadily eroded as divorces have risen. There are now approximately 120,000 divorces each year.
Throughout my career I have taken for granted the existence of legal aid. It never crossed my mind until recently it could end. Legal aid was introduced for family matters in the late 1940s as part of the post war welfare state. Legal aid reached its height during the years I have been in practise. It had its faults, but no system is perfect.
Legal aid was a way to get all those modern people into court to deal with all their issues I mentioned this evening. Legal aid used to be available too not only to those on state benefits but also to the middle classes who were assessed as eligible albeit with a contribution, so no one, no matter their financial circumstances, was denied access to the courts.
And at the end of the case, legal aid might be repayable, either immediately out of the assets recovered or by a statutory charge which carried interest and was repaid when a house was sold. It was extremely useful acting for a woman who wanted to stay in her home with the children but with her low or nil income had no obvious means of paying her legal fees. And usually the poorer party in greater need of legal aid was the woman. She usually had the lower income, the children, the greater housing need, the greater maintenance requirement.
But the Government, particularly the Treasury, had other ideas. “Abolition is long overdue” I was told at a book launch at All Souls College, Oxford in 2012 by a very senior civil servant at the Treasury. He quickly brushed off all my arguments about social responsibility of government to the population. It seemed to me then, that abolition of legal aid was a long-held, deeply entrenched ideology. And indeed, it didn’t take long thereafter.
On 1st April 2013 by law, the government abolished legal aid in private family law disputes for all but the tiniest fraction of people and they reinforced their decision, with another new law – the Children and Families Act 2014 – that obligated people who wanted to go to court to be assessed for suitability for mediation in a ‘Mediation Information Assessment Meeting’. Legal aid is still available for mediation.
The new law appointed gate keepers at the door of the court to make sure this was done. Mediation was heavily spun on the basis that it was cheaper than the courts and a panacea to all ills. Except of course, it is not. It is a useful adjunct to the court process but no more. Mediators need not be legally qualified and they are not allowed to give legal advice. Strictly independent of the parties, they focus on process, not a legally fair outcome. Indeed, even a successful outcome is not guaranteed. One determined party can string the other out, wear them down and over time oblige them to settle badly, because the weaker party cannot afford the protection of the court. So mediation in reality is for many, who desperately need help with legal costs, often about the blind leading the blind.
But guess what? Despite all the best efforts of the Government, mediation as a replacement for the court process continues to fail. People are ignoring the mandatory mediation route and voting with their feet by going to court, with or without a lawyer. Latest figures show in 2014-15 less than 5,000 people attended a mediation meeting out of 112,000 applications to the family courts. As a consequence, the pressure on the courts has worsened as litigants clog up the courts because they don’t know what they’re doing. They don’t know the law, or how to apply it, or how and when to settle. Alone, they’re afraid. They expect the Judge to help them – which of course a Judge cannot. Judges are themselves protesting at the additional work load and complaining that there is no useful buffer any longer between them and the lay man, – namely the lawyers trained to administer the court system.
Faced with literally clogged courts under great pressure, and a protesting Judiciary, the government has announced its response- the closure of 86 courts across the country. And it has increased the court fees across family courts.
If there is a smooth transition, planned to handle the disenfranchisement of hundreds of thousands of poorer litigants from the law and now physically from the courts themselves, it isn’t immediately obvious. We are told a digitalised online family law system is envisaged that can be accessed by the people without lawyers, but with reduced numbers of Judges, and it will focus on encouraging settlement as early as possible, albeit without access to legal advice. And it interestingly all assumes access to a computer and knowledge of how to use one.
Will a digitalised system work? I support modernisation of a system of course. But can it do justice to parties in need but without knowledge? Take the Child Support Agency, now 23 years old. It removed child support in 1993 from what I saw as its natural home, the court and the law. Formulaic, regulation heavy, now in yet another reincarnation, it never did. Child Maintenance Options – a website set up by the Government, is now saying:
“There are no laws that say how a parent should arrange child maintenance.”
The Times last week also reported the failure of the digitalised criminal law system. As the Inspectors of the criminal digital system discovered, it simply isn’t possible to remove human beings from the provision of legal services. And the public don’t want it either.
So, we will have to wait and see what happens and how it works.
But undeniably, whilst the Government ignores what the public do want and foists on them manifestly what they don’t, miscarriages of justice abound.
Recently my firm acted for a mother who over a year later, couldn’t even get the ashes of her dead son released from the undertaker for burial as his killer father refused her them. We acted pro bono and got them for her within weeks. A few weeks later, completely worn down, she died too.
If I get a call from Good Morning Britain or This Morning, it will usually be a story of a miscarriage of justice or a system swamped by people with legal problems but no access to legal advice. Recently I appeared on TV to discuss a couple whose child was wrongly adopted away from them. Lack of ongoing legal aid had caused it to happen. They had no idea how to defend the serious and untrue allegations being made against them in the family and criminal courts. They were successful in the criminal prosecution but by that time, it was too late. As yet I don’t know the outcome of their attempts to reverse the adoption order but I do know it’s very difficult. Legally aided it would never have happened.
I mentioned earlier the lack of cohabitation law, constantly ignored by governments, which causes injustice all round. Can we be surprised at the lack of willingness to introduce more litigation, to further increase the strain on the courts, because of potential claims by desperate women, many with children, at the end of a marriage in all but name?
So in conclusion, let’s stand back and take a look at what is happening right now, in the 21st Century, over 1000 years after rights were forcibly removed by law from Anglo Saxon women.
We have the confidence of the entire world in our family justice system. That is why desperate wives of wealthy plutocrats flock here to our courts for their divorce. It is not for nothing that London is named the divorce capital of the world. We are indeed the envy of the world with our statutes and case law for every conceivable situation, with our incorruptible judiciary, with our insistence on doing and being seen to do, fairness and fair play.
Are we really going to see an end to all that magnificent Judge-made law? An end to all those innovative interpretations that have survived to this day? Or in reality will we develop a two tier justice system, one for the poor to struggle online, if they can, reaching out to someone, anyone, to help them:- and another fit-for-purpose family law system running alongside, for the richer folk who can afford to go to court, with judges and lawyers to advise them at the toughest times of their lives?
In the 21st Century, is our family law, practice and procedure, fit for purpose?
I will leave that to you to decide. As I said at the beginning, it is all about justice.
April 21, 2016
Categories: Stowe Family Law