Delay
Sadly the family courts continue to be beset by backlogs and delays and the position at the end of 2022 is extremely concerning. At present there is a backlog of more than 110,000 cases and it is taking, on average, almost a year for a case to be completed. These delays are highly troubling, for example a parent seeking to secure a child arrangements order may not see their child whilst waiting for the court to adjudicate on their case. This backlog has been brought about by a number of causes: the pandemic, a shortage of judges (and recruitment difficulties) and the reduction of legal aid meaning many individuals have no option but to represent themselves in court which typically means that hearings take longer.
No fault divorce
No fault divorce is now well established having been introduced in April 2022. However, the initial figures show that the majority of people filing for divorce are doing so on a sole basis rather than filing jointly. It will be interesting to see if increasing use of alternative forms of dispute resolution (see below) lead to more couples approaching their separation more collaboratively and filing for divorce together.
Increased reliance on electronic filing
The myHMCTS portal has streamlined the process for filing applications for divorce and financial remedies and this will continue in 2023. The contested financial remedies portal will shortly become mandatory and all applications and court documents will need to be uploaded there. A further development is the ability for solicitors to share cases with barristers via the portal to enable barristers to file their own documents (position statements etc.) directly. The days of sending a clerk up to court to file an application are well and truly over.
Minimum Age for Marriage
The Marriage and Civil Partnership (Minimum Age) Act 2022 has received Royal Assent and is due to come into force in February 2023. From this time the minimum age for marriage will be 18 years of age. At present the minimum age is 16 with a parents consent. The purpose of this legislation is to protect vulnerable children and to prevent children being pressured/ forced into marriage before they are ready. The legislation is available to read here.
Transparency
This remains a hot topic in family law and one which will continue in 2023. A move towards greater transparency seems inevitable. A pilot scheme will take place in Leeds, Cardiff and Carlisle from the end of January 2023 and will permit accredited journalists to report on what they see and hear in court as long as they “protect the anonymity of families”. They will be permitted to report the relevant local authority in care proceedings, and the experts and lawyers involved. The court will decide whether or not to make a Transparency Order but retains the power to direct that there should be no reporting. The pilot scheme will run for twelve months.
Arbitration and other forms of Alternative Dispute Resolution (“ADR”)
Given the likely increase in transparency in the family courts I predict that we will see more and more families seeking to resolve their disputes by other methods than taking their case to court. There are many reasons why this is an attractive option – swifter resolution, privacy, certainty of tribunal and so on. In particular, arbitration is likely to become increasingly popular. In arbitration the parties are bound by the arbitrator’s decision (as opposed to other forms of ADR where the parties have to agree to the outcome.) There had been some concerns from clients about arbitration due to the very limited grounds for challenging the award handed down by the arbitrator but this issue has now been resolved. In 2020 the Court of appeal handed down judgment in Haley v Haley¹ and essentially made the grounds for challenging the decision of an arbitrator the same as for challenging an order made by a judge.
Cohabitation reform
Disappointingly, one thing we are unlikely to see in 2023 is any reform in the law for cohabitants. There are 3.6 million couples in the UK living together. Many of these couples believe, falsely, that after living together for a period of time their relationship becomes a “common law marriage” and that they acquire rights arising out of their relationship. This is presently not the case and in fact on separation they have to rely on general principles of property and trust law, sometimes leaving the economically weaker party in a real predicament. As long ago as 2007 the Law Commission made recommendations for reform but no progress has been made thus far. In August 2022 the House of Commons Women and Equalities Committee published its report on the rights of cohabiting partners and recommended reform. However, the government has responded to say that it will not be taking any steps in relation to cohabitation law until existing work on financial provision on divorce is complete.
Parental Alienation
This thorny issue of parental alienation is likely to receive more focus in 2023. The Family Justice Council issued interim guidance in relation to expert witnesses opining on parental alienation which can be viewed here and their full guidance note is expected in 2023.
Public Law Children
Sir Andrew McFarlane (the President of the Family Division) announced in early December 2022 that there will be a push to reconnect with the Public Law Outline. This sets out that care cases involving children should aim to be dealt with by the courts within a maximum period of 26 weeks. In 2021 the average care case took 44.4 weeks to be disposed of and only 23% of cases hit the target of 26 weeks. The Public Law Outline will be re-launched on 16 January 2023 and it is hoped that this will lead to a swifter process for those children involved.
Amendments to the Online Safety Bill
In November 2022 the Government indicated that it will implement the Law Commission’s recommendations to improve the law relating to intimate image abuse and better protect its victims. The proposal is to criminalise sharing an individual’s intimate images without their consent.
Remote Hearings
During the Covid-19 pandemic family court hearings were, in certain circumstances, held remotely. The current position isa hybrid of attended and remote hearings. The Family Justice Council’s annual debate that took place on 6th December 2022 had the motion, “Should remote hearings continue to play a significant role in family cases” and it is likely that 2023 will see further guidance in this area.
