Brexit – Family Law Perspectives


My first thoughts on Brexit news today was sympathy for parents whose children have been removed to other European countries following leave to remove decisions. The decision last night will be causing them uncertainty and anxiety.

One of the the best EU regulations from a family law perspective  (or bureaucracy that was forced upon us as some would say), were the Brussels II Revised Regulations. Article 21 of those regulations make contact orders made in one EU country (excluding Denmark who opted out) enforceable in another EU member state. Will we lose those protections? Will a replacement to that agreement be made between the UK and EU? Will this protection be removed entirely, and will the parent facing the high cost of legal proceedings in the UK then face the daunting cost of starting again in a foreign jurisdiction with a UK order not worth the paper it’s written on? One can only hope this is not forgotten in the Brexit negotiations which follow. I wish I had the answers to give assurances, but no-one does nor will for some time.

Parents whose children are relocated to other EU states may face higher air fares (Europe saw the end of bi-lateral air service agreements); they’ll face travel insurance costs (while at the moment there are reciprocal agreements); and then there’s the loss of protected rights in terms of travel to other European countries. Will their children be able to return to the UK if they so decide when they reach adulthood? Maybe only if they have the requisite skills to meet an immigrant quota system. School choice and subject choice could become far more important for parents who remain in the UK. Will there be a right to involvement in those decisions? Will that right be enforceable in a foreign jurisdiction? Unlikely.

In terms of protections against international child abduction, we’ll stay part of the Hague Convention on the Civil Aspects of International Child Abduction, but I’ve no doubt that membership of the Brussels II Regulations gave British parents (and all European parents other than the Danish) greater protection. The Hague Convention as we all should know, is no guarantee of having your child returned.

I’ve no doubt that membership of Europe made it harder for the Tories to pursue their wish to extract the UK from the Human Rights Act (and EU Convention on Human Rights). It is the UK’s being subject to the European Court of Human Rights which freed Sir James Munby to insist on legal aid being given to two parents with learning difficulties who couldn’t afford legal representation, who faced their children being permanently removed from them by social workers, but had had their right to legal representation taken away by Government. They faced a Local Authority with a full legal team. Our judges could challenge the decision of Government on human rights’ grounds, because those rights were protected despite what was undeniably a democratic decision to strip those rights from two, vulnerable parents who lacked the capacity to conduct their own case. Democracy isn’t always a good thing or democratic decisions defensible. Europe at least gave a check and balance against human rights abuses. A chance for the man or woman in the street to stand up to large institutions and fight injustice.

I know some who view Brexit as a good thing. In terms of the microcosm of family law, it is not. My thoughts today are with the parents it affects, and who will be affected in the future.


Help: Non Molestation Orders and Without Notice Applications


Data from a Freedom of Information Act request for non-molestation order applications (in 2014) shows that of the 21,162 applications (included in the statistical returns) a little over 60% were made ‘without notice’ (12,769 applications).

Without Notice applications to the court involving claims of domestic violence often result in injunctive orders being made without the accused having had the opportunity to present their own evidence in defense at the time the order is made (the orders being made ‘ex-parte’ which means without the other party being present). Typically, those applications are for non-molestation orders and occupation orders.

These orders have serious implications and can impact upon the respondent’s family life, restrict their freedom of movement and carry a power of arrest if broken.

When such injunctive orders are granted, the applicant is then entitled to legal aid and professional representation. The accused is not. This gives the accuser advantage in future proceedings/hearings if the accused then seeks to challenge the making of the order or there are contested proceedings over arrangements for children.

As well as injunctive orders being made ‘ex-parte’, on occasion hearings are listed on short notice giving the accused little or no chance to prepare. Where orders are made ex-parte, the court is unlikely to have heard any evidence which challenges the allegations. In cases where there is genuine risk of violence to the applicant, there is good reason for the accused not being ‘tipped off’ in advance of the court making precautionary orders. Such caution however has its risks in that, when allegations are false, this can result in the court being a party to coercive control and the accuser having unfair advantage in future proceedings.

Such injustices do arise. In R v R (Family Court: Procedural Fairness) [2014] EWFC 48, Jackson J lists a catalogue of errors by the lower court, and gave comment (at paragraph 1(5)):

“The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.”

In that case, the court’s guard was clearly down. That case, sadly, was not exceptional.

There are procedural checks and balances which should mitigate risk. The accused should have a further hearing listed where there is the opportunity to defend themselves. They should be notified of, and have sight of all evidence which was put before the judge when the order was made. They should have the opportunity to file their own evidence. Sadly, such procedures are not always followed. This compounds the injustice caused by one party being represented while the accused is often not.

In B v A [2012] EWHC 3127 (Fam), Charles J states:

“11. Both Theis J and I (in B Borough Council v S) point out in restrained terms that the principles and  procedures in respect of without notice applications that are clearly established by authority are regularly not followed in the Family Division.

12. This case provides an example of this.  To my mind, this regular and flagrant failure by many practitioners and judges is contrary to the public interest.  I, and some of the other judges of the Division, try to bring about necessary and much needed changes when dealing with without notice applications (particularly in the Applications Court).  But sadly, this case is a clear demonstration that we have not succeeded and that a number of our colleagues do not take the same approach.  So the serious failings are endemic amongst many family practitioners and judges who have been family practitioners.”

The frustration held by some campaigning groups is acknowledged and shared among senior judiciary.

Difficulty for the unrepresented accused comes from a lack of knowledge as to whether the correct procedure has been followed by the court (and/or applicant and their legal representatives). This inevitably interferes with their defending against the order due to their ignorance of procedural irregularity. While instances of procedural unfairness/irregularity do result in successful appeal, a litigant-in-person is often oblivious to the grounds which may exist in their case. Not so much ‘ignorance is no defense’ but ‘ignorance prevents defense’.

Many of these cases are heard in the lower courts where knowledge of correct process can be lacking. Additionally, we see growing instances of complex cases being handed down to magistrates who lack the experience and training of more senior judges. Such occurrences are likely to become more common-place as a result of court closures, austerity and cuts. Unless there is radical change, or legal aid awarded to the accused as well as the accuser (highly unlikely in the current political climate), it is for the litigant-in-person, whether a plumber, cab driver, hairdresser or unemployed to get to grips with complex areas of law when unable to afford legal assistance. In such circumstances, it’s impossible to see how justice in England and Wales is compliant with the human rights act and a right to a fair hearing.

There has been an ‘explosion’ in the number of non-molestation orders being made by the court since legal aid was limited to cases involving domestic violence. The Daily Mail picked up on the subject of a series of articles we ran last year… see ‘Daily Mail: Huge Rise in DV Claims after Legal Aid cuts‘.

To help in these cases, we have a new section in our web site, under our Case Law Menu, entitled Without Notice And Non-Molestation Order Case Law. The purpose is to inform both sides involved in these proceedings as to the correct procedure which should be followed by both the court and applicant in respect of without notice applications for injunctive orders. We will be expanding upon this section in the coming weeks, and also providing a dedicated guide and support tools. In the meantime, we have also made reference in that section to rules related to applications for these types of order (made under Part IV of the Family Law Act 1996).

You may also wish to refer to our existing guides on Domestic Violence, Non Molestation Orders, Occupation Orders, Undertakings, False Allegations and our Occupation Order Case Law Menu.

We also recommend you pay particular attention to paragraphs 13 to 16 of KY v DD [2011] EWHC 1277 which is included in our new section.


Where have all the parents gone?


The Chief Executive of Her Majesty’s Courts and Tribunal Service announced this week that litigants-in-person “have not actually increased the court budget or the demands on the court”.  Some have suggested more unrepresented people have not lengthened proceedings as a whole.

I thought I’d have a look at the actual statistics and contemplate what that means for child welfare. Continue reading Where have all the parents gone?


Lobbying for legal aid, but silence for those most in need


There’s continued discussion on social media and legal media about lobbying to reverse cuts to legal aid. Today’s quote was the Chairman of the Bar saying “We believe access to justice is a fundamental part of the rule of law and are doing all we can to help limit the impact upon those who find themselves in this dire situation. However, there is only so far the legal sector can go in tackling this problem. It won’t go away unless the cuts to civil legal aid are restored so that those of limited means can, again, have proper access to justice.”

It’s wrong that one party gets free representation if making allegations of domestic violence yet the accused gets no help at all. We should remember though that before legal aid cuts came in, many didn’t qualify for legal aid but couldn’t afford a solicitor. If there is to be the access to justice that the Bar calls for, eligibility criteria needs to be far more realistic than was previously the case.

Regardless of that debate, there’s another which seems to be ignored entirely. The shameful lack of funding to assist parents whose children are abducted abroad to non-Hague Convention countries.  We should also not forget those parents whose children are abducted to a Hague Convention country, in instances where the foreign state does not comply with return orders or where there are protracted appeals abroad. Legal costs can (and do) run into six figure sums and at times appeals take years to conclude. Continue reading Lobbying for legal aid, but silence for those most in need


Poles apart: Midlands Non-Molestation and Residence Order data


Last week we announced national statistics for non-molestation orders. Ministry of Justice (MoJ) supplied data indicates an explosion in applications in Birmingham’s County Court and Family Proceedings Court and it’s been the focus of a great deal of conversation. A reasonable question posed was “Would an increase in applications for family cases explain the increase in non-molestation orders being made?”

The simple answer is no. If anything, comparing applications for these two types of order makes the numbers look even more extraordinary.

Continue reading Poles apart: Midlands Non-Molestation and Residence Order data


The Growth in Applications for Non-Molestation Orders: Spotlight on the South of England


Last week we published data for the Midlands and North West, received from a Freedom of Information Act request to the Ministry of Justice concerning non-molestation orders and applications made under civil legal aid. We suspected that applications might have increased since the introduction of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Such was the opinion of others we have spoken to.

The Act limited legal aid in private family law cases to ones where domestic violence was alleged. To provide a meaningful analysis, we’ve compared data between the first half of 2012 (before LASPO) and the first half of 2014 (after LASPO came into force in 2013).

Numbers for the Midlands and North West show a dramatic increase in applications in certain regions. Today we look at the South of England, and national statistics are provided below as a reminder of the national position. Continue reading The Growth in Applications for Non-Molestation Orders: Spotlight on the South of England


Non Molestation Orders – The National Picture, North West Anomaly and FPCs


In yesterday’s article we shared how the growth in non-molestation order applications in the Midlands appears quite staggering. Today we’re sharing top level statistics for the national picture and North West in particular. There’s also something very odd related to Ministry of Justice (MoJ) statistics for Family Proceedings Courts. Continue reading Non Molestation Orders – The National Picture, North West Anomaly and FPCs


Non-Molestation Orders and Legal Aid – Time for Investigation


In 2013 the Legal Aid, Sentencing and Punishments of Offenders Act (LAPSO), came into force. One area of law affected was private family work, with legal aid being cut with the exception of cases where domestic violence was alleged. There were concerns that this might prompt a rise in false allegations as a means to secure free legal representation. So has there been a stark increase in applications for non-molestation orders?

Last week, we received a copy of data from a Freedom of Information Act request to the Ministry of Justice on Civil Legal Aid and Applications for Non-Molestation Orders and have finally had a chance to ‘crunch’ the numbers.

There’s something odd about the Midlands Continue reading Non-Molestation Orders and Legal Aid – Time for Investigation