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.


The McKenzie Friend Issue


Last weekend I spoke at a charity event on common failings in intractable contact disputes. Inevitably, the question arose about thoughts on the judicial led consultation on McKenzie Friends. What were my thoughts?

For those unaware, there is a consultation underway to look at whether McKenzie Friends should be regulated, insured and paid. Continue reading The McKenzie Friend Issue


Failings in Intractable Contact Cases Continue


When intractable contact dispute cases fail to be resolved there are common reasons, and ones which involve how the cases are managed by the court and professionals involved in proceedings. Some of those cases are salvageable, while for others the long length of proceedings acts as a bar to the court entertaining a different approach.

My criticism isn’t universal and I acknowledge there are experienced and highly capable judges and welfare officers. It’s that very observation which sees me compare what, in case management terms, is the good, the bad and the ugly (one movie we didn’t see this Christmas). Sadly, justice and positive outcomes remain reliant on the quality and experience of the individuals involved, with a lack of process and poor adherence to what process exists exacerbating problems. The appeal system alone is an inadequate means of quality control to identify poor practice and capability.

Rather than intractable contact disputes being complex, these are often cases made complex by poor investigation, inadequate welfare analysis and failures to apply and carry through strategies from an early stage. These are common reasons for failure, and the saddest thing of all is that none of these should come as a surprise. Continue reading Failings in Intractable Contact Cases Continue


Spotting Bad Advice and Advisers


There have been several published cases in recent weeks where litigants and their advisers faced criticism over litigation misconduct. Several other cases have arisen which show suspect advice had been followed by the litigant.

The purpose of this article is not to level criticism, but to help people avoid legal advice and advisers who can damage their case and their relationships. In days of social media, advice is coming from forums, Facebook groups and a whole manner of other places including friends, family, the local neighbour and the bloke on the end bar stool down at the pub. Not all advice is good, and some advisers should be avoided. Continue reading Spotting Bad Advice and Advisers


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?


Important Judgment – Re T (A Child) (Suspension of contact) (Section 91(14) CA 1989) [2015] EWCA Civ 719


An important judgment and essential reading for those who assist litigants-in-person. Continue reading Important Judgment – Re T (A Child) (Suspension of contact) (Section 91(14) CA 1989) [2015] EWCA Civ 719


Law Society Guidance on dealing with Litigants-in-Person and Malpractice


The Law Society has published guidance for solicitors on dealing with litigants-in-person.

This, on the whole, is a welcome step forward. We experience and too often hear of three areas where solicitors’ and barristers’ conduct is unacceptable: Continue reading Law Society Guidance on dealing with Litigants-in-Person and Malpractice


Knowledge gaps among Legal Advisers in the Magistrates Court


Legal Advisers are responsible for giving legal advice to Magistrates in Magistrates’ Courts throughout England and Wales. They are employed by Her Majesty’s Court and Tribunal Service. They help Magistrates to make decisions and state the legal reasons that underpin the decisions. They may also make judicial decisions to progress a case. In essence, for the Magistrate, they’re their technical legal adviser… or should be.

It appears, there are some startling knowledge gaps among the profession, as made apparent by a couple of recent experiences which I felt important to share. Continue reading Knowledge gaps among Legal Advisers in the Magistrates Court