24 December 2020
Horizon Scanning: What does the year ahead hold for Family Law?
Many of us will be glad to herald the end of 2020. But what does the year ahead in 2021 hold for Family Law?
The Family Justice Board recently reported that private law family cases may not return to pre-pandemic levels until 2023. The report reveals that the backlog in private law cases has increased by 18% since the first lockdown in March 2020. Whilst this does not bode well for parties needing to get their case before a court it may encourage parties to seek to resolve their disputes by reference to alternative dispute resolution mechanisms such as mediation or arbitration which would lessen the burden on the courts.
No fault divorce
Perhaps the most exciting development will be the long awaited introduction of no fault divorce, anticipated to become law in autumn 2021. The Divorce, Dissolution and Separation Bill received Royal Assent in June after many years of campaigning by family lawyers.
The current law requires the parties to demonstrate that the marriage has irretrievably broken down and to support this by citing one of the following five facts:
i. That the other party has behaved in such a way that the petitioner cannot reasonably be expected to live with them;
iv. A period of two years separation and both parties consent to a divorce; or
v. A period of five years separation.
The most frequently used ground for divorce is that the other party has behaved in such a way that one cannot reasonably be expected to live with them. This requires the party raising a petition to set out detailed examples of that behaviour essentially requiring them to blame the other party for the end of the marriage.
It has long been felt by family lawyers that asking one party to blame the other for the breakdown of the marriage at the outset causes unnecessary conflict and can often start proceedings off on the wrong foot. In many cases there is no single factor behind the breakdown of the marriage – it is simply a sad fact that the relationship is over. However, the current law encourages accusation and counter-accusation. The case of Owens v Owens illustrated the point neatly with Tini Owens being denied a divorce as her husband contested her contention that the marriage had broken down. Mrs Owens’ particulars of behaviour were considered insufficient to persuade the court that the marriage had irretrievably broken down forcing her to remain in a marriage that she has long since considered at an end.
The new law will remove the need to rely upon one of the five facts and the sole ground for divorce will be that the marriage has irretrievably broken down. It will no longer be possible to contest an application for divorce (save where the objection is based on validity, jurisdiction, fraud, coercion or procedure). It will also be possible for a couple who have reached the joint conclusion that their marriage is at an end to make a joint application to divorce. Family lawyers welcome this change in the law and it is hoped that this will make the path to divorce less adversarial, more civilised and will remove the acrimony in many cases.
The UK left the EU on 31st January 2020. However, the EU Regulations have continued to apply throughout the current transition period which will end at 11pm on 31st December 2020. Post 31st December the UK will no longer be a party to any of the EU family laws and they will not apply to cases issued after that date. Most significantly for family lawyers, we will no longer be bound by Brussels IIA (which deals with conflict of law issues in family law between member states) and the Maintenance Regulation (which deals with conflict of law issues regarding maintenance obligations.) Instead we will have to rely on national law and a number of international Conventions.
In terms of divorce jurisdiction it will now be possible to rely upon sole domicile. The current “race to court” or lis pendens rules will be lost and replaced with forum conveniens whereby jurisdiction will be based in the country that a couple have the closest connection with. This is likely to lead to disputes between countries about where the divorce should be heard as we will no longer be able to rely on the reciprocity afforded by the lis pendens rule. The UK has sought to accede to the Lugano Convention but this has not yet been agreed by the EU.
The loss of the Maintenance Regulation will be caught by the UK having ratified the 2007 Hague Convention on Maintenance. However, consideration will have to be given to how to enforce a successful claim as this may become more difficult.
Brussels IIA also dealt with jurisdiction for parental responsibility, child protection and child abduction. Following the end of the transition period we will rely on the 1980 and 1996 Hague Conventions. These Conventions do not provide a perfect solution, for example, orders relating to parental responsibility are currently automatically recognised between the UK and the EU but post 31st December it will be necessary to apply for a mirror order in the court of the other country. This will inevitably lead to greater expense and delay for litigants. For child abduction matters it seems likely that cases will not be dealt with as swiftly as they currently are.
A leading story of 2020 was the case brought by Alfred McConnell, a transgender man, for the right to be recorded on his child’s birth certificate as “father” or “parent” as opposed to “mother”. The High Court and the Court of Appeal held that, as he gave birth to the child, the birth certificate must record him as the “mother” irrespective of his legal gender (male). The Supreme Court declined to hear his appeal in November 2020 and Mr McConnell has indicated an intention to take his case to the European Court of Human Rights.
The recent decision in the case of Keira Bell & Another v Tavistock and Portman NHS Trust, regarding the capacity of a child to give informed consent to gender changing treatment, principally the administering of puberty blockers, is likely to be appealed by the Tavistock. Ms Bell was prescribed puberty blockers at the age of 16 as part of her decision to transition to male. She underwent a double mastectomy at the age of 20 but has since decided to de-transition. The case centred on the ability of children to be able to give informed consent to treatment with such profound implications. The court found that children under the age of 16 are unlikely to be able to give “informed consent” to such treatment and that even for young persons over the age of 16 it may be necessary for the courts to be involved.
Post pandemic impact on divorce
Many lawyers predict that coming out of the pandemic there will be a rise in the number of divorce applications. The Citizen’s Advice charity reported a 25% increase in individuals searching for divorce advice during the first weekend of September 2020 when compared to the same weekend in 2019. The theory is that many relationships have struggled with the effects of families being locked down together with no escape and that 2021 may see an increase in applications for divorce. Whether this comes to pass remains to be seen.
Presumption of parental involvement
The Ministry of Justice has announced a review into the presumption that it is in a child’s best interests for their parents to be involved in their lives. The review will examine how the courts balance child safety with the right to family life. We will have to await their findings and recommendations on whether reform is needed in this area.
The implementation of the Law Commission reforms on surrogacy is likely to be another area to watch in 2021. A consultation into the current surrogacy laws ran from 6 June to 11 October 2019 and the Law Commission’s full report is awaited.
The changes are expected to centre around the period of time it currently takes for the intended parents to become the legal parents of the child after the child is born. The current process takes many months meaning that during that period the legal status remains with the surrogate and does not reflect the reality that the child is living with the intended parents. The proposed new surrogacy pathway might enable the intended parents to be the legal parents from the moment the child is born. More regulation is likely to be introduced for surrogacy arrangements to include safeguards such as counselling and independent legal advice.
The Commission’s report is expected to be produced along with a draft bill for consideration by Parliament in 2021.
The recent case of Newman v Southampton City Council has also highlighted the ongoing issue of transparency in the family courts. In this case Ms Newman, a professional journalist, had applied for disclosure of the complete court file in care proceedings. She was not permitted access to the entire court file but was provided with limited and narrow disclosure of the documentation contained on the file, namely expert reports relating to the mother, position statements and case summaries. This case highlights the ongoing tension between the need for transparency within family proceedings whilst at the same time protecting the confidentiality rights of the parties concerned. In this case the balancing exercise favoured confidentiality.
It is anticipated that this issue will remain a hot topic in 2021. The President of the Family Division is in the process of undertaking a transparency review to consider the current arrangement which regulate access by journalists and the public to, and the reporting of, information concerning proceedings in the Family Court. The outcome of that review is keenly awaited.
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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.
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