A huge backlog of family cases, increased by lockdown, is just one of many challenges facing family lawyers, writes Katharine Freeland
The low down
The lockdown has forced family law practitioners to adapt rapidly. They were already managing in difficult circumstances: the physical state of the courts is poor, the judges who preside over them vary in quality, and high numbers of litigants in person complicate matters further. There is Brexit, which could mean reciprocal agreements with European Union countries to facilitate fair arrangements do not continue. And now lawyers face the dramatic changes in hearing arrangements that the response to Covid‑19 necessitated, about which there are human rights concerns. Child protection applications are up; and property and investment values are in flux or freefall, making financial settlements harder to achieve.
For family law practitioners, lockdown shattered the routine of the working day. Court hearings not postponed are conducted online or on the phone, depending on the technological sophistication of each court or judge; urgent care proceedings are up; and the evaluation of financial assets in divorce proceedings has been dramatically complicated by share price falls, house price uncertainty and plummeting pension pots.
Despite these ructions the wheels continue to turn. It is just as well family practitioners are used to handling the unexpected – and they are now doing so from their own homes.
We will see family law developing through judge-made law, not statute
Sally Harrison QC, St John’s Buildings
Public policy changes
Of course, public policy approaches to our relationships have a greater impact on the lives of many than more rarefied legal fields. Currently, 42% of marriages in the UK end in divorce; and the upsurge in domestic violence during lockdown has generated widespread concern among charities and elsewhere. Unfortunately, some proposed reforms have been hit by a double whammy: Brexit and the pandemic.
‘There is a sense that family law issues are not top of anyone’s agenda, that they are not a vote winner,’ says Claire Gordon, a partner in the family and divorce team at Farrer & Co. ‘It is hugely frustrating.’
One exception is the Domestic Abuse Bill, reintroduced into parliament on 3 March. This creates a statutory definition of domestic abuse and a Domestic Abuse Commissioner, and provides for new protection notices and orders. Significantly, the bill prohibits alleged abusers from cross-examining their victims in family court, and victims having to cross-examine abusers, and creates a statutory presumption that a person who is a domestic abuse complainant is eligible for special measures in the criminal courts. Many charities have welcomed these measures, while stressing they do not go far enough to protect migrant women of uncertain settled status. The reappearance of this bill is unusual, though. Post-pandemic, family practitioners do not expect to see progress in proposed updates to the laws on surrogacy, cohabitation or matrimonial finance.
‘We will see family law developing through judge-made law, not statute,’ predicts Sally Harrison QC, family law barrister at St John’s Buildings.
State of the courts
For many years regional family courts have suffered from lack of investment, with many closing down and the remainder manifesting ‘squalid conditions’, according to one family law barrister. With hearings now being held remotely, there is a concern that the move online will hasten their deterioration or demise.
Although judges and counsel have, by all accounts, adapted well to using Skype or Zoom – and when all else fails the phone – to conduct hearings, there are fears that the right to access to justice enshrined in the Human Rights Act is being compromised. The Nuffield Family Justice Observatory recently highlighted its concerns in a rapid evidence review. It found that: parties do not always appreciate the seriousness or finality of proceedings that are held remotely, so do not take legal advice; video proceedings can impair a client’s ability to liaise with their legal counsel; and that remote hearings make it more difficult for the courts to identify vulnerabilities in parties.
REFORMS STUCK ON HOLD
Surrogacy: more rights for intended parents
The law on surrogacy is considered to be outdated and unsympathetic towards modern ‘blended family’ setups, as it dates back to the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. At present, a surrogate is automatically the child’s legal mother, so has parental responsibility for the child, and her spouse or civil partner may assume the role of father or other legal parent. The intended parents have to apply to the court to be granted parental responsibility of the child and cannot do so within the child’s first six weeks of life. The surrogate, and potentially her partner, must freely consent to this act. The Law Commission has proposed that the intended parents should become legal parents at the time of the child’s birth, and for the surrogate to retain a right to object for a short period of time.
Matrimonial finance – a ‘clean break’
Baroness Deech has tabled a private member’s bill to amend the Matrimonial Causes Act 1973 and reform the way the courts deal with financial settlements following divorce. Measures proposed include the courts treating pre- or post-nuptial written agreements between spouses as binding, if certain conditions are met; the introduction of an assumption that matrimonial property should be split evenly; and for the duration of spousal maintenance to be limited to five years, unless this would cause ‘serious financial hardship’.
Legal protection for cohabitants
The Law Commission proposed reform of financial arrangements relating to cohabitation back in 2007. Despite cohabitants being the fastest-growing family unit in the UK – according a recent study by the Office for National Statistics (ONS), it is overtaking the traditional family unit – they have little legal protection in the event of a party’s death or the relationship ending.
One upside of the necessarily abrupt move online was the quick take-up of e-bundles, which were introduced before the lockdown.
‘It was fortunate that we, at [St John’s Buildings] chambers, switched to an e-document management system at the right time, following Mostyn J’s e-bundle protocol for the financial remedies courts in early March,’ says Harrison. ‘As a profession we have to take advantage of this progress and not fall back into old ways.’
The move online has also increased awareness of when remote hearings might be more desirable. ‘We act for people all over the country advising on children’s law issues. Applications have to be made where the child lives, which means a lot of time spent travelling,’ says Katie Welton-Dillon, head of the children’s law team at Hall Brown. ‘A remote hearing in this circumstance is a much more efficient use of time for our clients.’
Ideally, the move to remote hearings should produce a lasting legacy in the court system. ‘We have advanced, at huge speed, developments that have been talked about for years,’ says Penny Scott, a partner at Cartridges Law and chair of the Law Society’s Family Law Committee. ‘Although we should expect some retreat from this current radical position, we need to retain the benefits.’
What is being heard
Urgent child protection cases are now being prioritised, as the court system is processing significantly fewer cases per day. Even before lockdown there were lengthy delays to hearings, due to underinvestment and the proliferation of litigants in person following cuts to legal aid. Now, more than ever, family solicitors have experienced a surge in demand for private financial dispute resolution (FDR) and arbitration. Proponents of FDR argue it has the advantage of cutting delay and minimising the strain on families of drawn-out litigation, presenting the opportunity for parties to identify and resolve conflicts with the assistance of a judge or a specialist family solicitor. FDR has been endorsed by the former president of the Family Division, Sir James Munby, and has a high settlement rate.
‘The courts can be a cold, clinical environment for clients,’ observes Andrew Newbury, partner at Hall Brown. ‘Many clients prefer to do an FDR in the comfort of a solicitor’s office or judge’s chambers.’
The profession is finding other ways to circumvent court delays and the uncertainty over fair outcomes. Withers recently established a ‘separation model’ to help couples find a solution without going to court. This aims to ‘remove the conflict, polarities and positional offers of the court system and give couples the proper headroom to negotiate a realistic solution’, according to Suzanne Todd, head of the firm’s divorce and family team in London. However, these private arrangements are only practicable for those who can afford them and are therefore out of reach for many litigants.
Another option that has surged in popularity since lockdown is the online divorce, which has been available for parties acting in person since May 2018 and for use by legal professionals since December 2019; constituting a means by which parties can receive a decree nisi seven weeks from filing the initial petition.
Divorce settlement pendulum
The early 2000s saw three cases that moved the goalposts in divorce by leading to generous settlements for wives: Miller, Macfarlane and Parlour. In the case of former Arsenal footballer Ray Parlour (pictured above) this included, controversially, the right for his ex-wife to receive a proportion of his future earnings. At that time the media crowned London the ‘divorce capital of the world’. Forum shopping by international high-net-worth individuals was rife.
Fifteen years on, the underlying attitude to the economically weaker spouse (usually the wife) has changed. ‘There has been a retrenchment in the courts’ approach toward maintenance orders,’ says Newbury. ‘Before, they were generous in the term over which maintenance was to be paid. But now there has been a move away from that in favour of more of a clean break.’
Remote hearings are being held with both parties in the same house. Clients have to speak from the greenhouse or the car to obtain legal advice without being overheard
Claire Gordon, Farrer & Co
Recent turbulence in the economy has already resulted in an upsurge in variation applications, as financial circumstances drastically alter. Family solicitors are dealing with the complication of a main breadwinner keen to press ahead with a settlement, but with a reduced balance sheet that may rebound in the future to the disadvantage of the financially weaker party. The pendulum could swing again.
‘We may see the resurgence of maintenance orders with the current reduction of capital,’ says Harrison.
One question much discussed in family law circles is whether the impact of Covid‑19 on personal finances may lead to more Barder appeals – that is, requests for the fairness of the original order to be re-evaluated due to an unexpected supervening circumstance. Barder appeals are rarely successful, but this might change due to the financial costs of the pandemic and the lockdown.
‘The family courts are keen on finality and certainty, so will be extremely cautious about revisiting orders,’ predicts Newbury. ‘No one knows what will happen – this situation is so extreme.’ If more Barder appeals are successful, this will add to the courts’ post-lockdown backlog.
The easing of lockdown will be a relief for everyone, but in particular couples who are in the middle of a divorce but stuck in the same residence.
‘Lockdown with the partner you are divorcing is emotionally and practically challenging,’ says Gordon. ‘Remote hearings are being held with both parties in the same house. Clients have to speak from the greenhouse or the car to obtain legal advice without being overheard.’
Practitioners are expecting a surge of divorces after the imposed proximity of lockdown, in line with the increase of work following summer and Christmas holidays. And the upheaval of Covid‑19 aside, the implications of Brexit are still to be tackled, as questions remain about the position of reciprocal arrangements regarding the custody of children.
‘At the moment, the impact of Brexit on these rules is impossible to predict,’ says Claire Blakemore, a partner in Withers’ divorce and family team.
As in so much else, the future can rarely have been so uncertain.
Katharine Freeland is a freelance journalist