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.
A few days ago I shared an update that the President of the Family Court has announced the production of draft family law orders better suited to Litigants-in-Person (parents who represent themselves in court). The intentions are positive and include better consistency across the court service and wording aimed at the non-technical.
Hopefully the new judicial templates will cut down on some of the poor practice we see, including filing dates being left off directions, and warning notices being omitted (despite their inclusion being a statutory requirement).
The President, in his announcement, seeks to address the resistance which exists to change, which included complaints that previous draft court orders issued in early 2014 were apparently too difficult for some to use. Others complained that the standard drafts were too long. As mentioned above, trusting people to include the right wording in orders is fine in theory, but in practice this resulted in mistakes being made and omissions. To help ease in the change, the President has also had prepared a tick list of potential order wording which allows a judge/court staff to quickly select the wording they wish included in the order.
The President’s announcement does miss something though. It’s not uncommon for McKenzie Friends to be asked to draft court orders. Where the judge regularly sees the McKenzie Friend in court, and is confident in their ability, this happens sometimes even when the other party is represented (yes, really!).
All well and good to make the draft order wording available within the court service, and widening publication to the Bar and Law Society, but what about McKenzie Friends?
This is where we step in. The draft order wording is now available within our Draft Court Orders section of our Family Law App. The ‘tick list’ wording can be downloaded as a PDF and is also available via the link picture below:
F (Children)  EWCA Civ 1315 is yet another case involving alienation where the handling of the case by the lower court was ‘wholly inadequate‘. Not my opinion (actually it is, and I agree…), but that of the Lords Justice who heard the appeal.
The case highlights the failings which are increasingly commonplace in the lower courts. The child has been poisoned by one parent against the other yet the court grants excessive weight to the child’s wishes and feelings at the cost of their welfare needs, and fails to address the issue of the alienating parent’s behaviour. The child is left subject to continued emotional abuse and the parent who sought the court’s help is utterly failed. Months elapse due to the court’s failure to get a grip and problems become entrenched. Continue reading Judicial Judgment ‘Wholly Lacking’ in Intractable Contact Cases
It is common in the family law arena/charity sector to get requests from the media or from students undertaking PhDs, asking for contact details for people who have been involved in family law proceedings for the purpose of news stories or research.
On the whole, we do not involve ourselves with passing on details of people who have been involved in court proceedings. Exceptions are if: Continue reading Research and Media Requests – Things to Ponder
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
Last month I alerted you to the fact that a new judgment was due from the Court of Appeal which clarifies and updates the application of family law in internal relocation cases. The judgment is now published and we’ll be adding this to our library in the coming days and updating our guides on internal relocation and family law.
The judgment is in the case Re C (Internal Relocation)  EWCA 1305. Continue reading Important Judgment: Internal Relocation
We have seen a number of cases recently where the courts are failing to follow rules in relation to case allocation. Some of the worst examples include:
- leave to remove cases (where one parent seeks to remove the children abroad).
- complex cases previously heard in senior courts ending up heard by magistrates who fail to examine case history prior to varying the existing orders (which came before them for enforcement).
In short, the wrong level of judge is hearing cases in breach of court rules and guidance. If your case is allocated to the wrong level of judge, ask for it to be moved to the right level by writing into the court. We suggest writing into the court where the application was made, and addressing your letter to the Designated Family Judge (DFJ) responsible for Gatekeeping and Case Allocation. If you can, take the letter into court, hand it into the court administration department and ask for a receipt to confirm delivery. After this, if matters continue to be heard at the wrong level, write a position statement including a request for the case to be transferred and deliver this to court two days before the next hearing. Raise the matter orally at the hearing and take a copy of that position statement and the letter sent to the DFJ into court with you.
Case outcomes can be put at risk when too junior a judge hears them. This is why the rules exist to ensure more complex cases are heard by more experienced judiciary. In this article, we remind people of how cases should be allocated and the rules which govern this. Please reference the guidance we cite when asking that the court move proceedings to the correct level of judge.
Continue reading Failures in Judicial Case Allocation and Gatekeeping
On occasion during family law proceedings and when campaigning, you come across theories and beliefs which are contradicted by a wide body of research.
Some hold a view that while the quality of contact is important for children, the quantity is unimportant. Others have argued that overnights for very young children away from a primary attachment figure is harmful. More daft are theories it harms brain development. Some point to reform in Australia and the introduction of a presumption in shared parenting having been unsuccessful. Something links these beliefs… they’re misinformed and/or just plain wrong.
Today we launch a new section to our site – Shared Parenting Research.
When we argued for the reform of relocation related law, we used child welfare related research to underpin our arguments. Children do best when subject to post-separation shared care arrangements. This doesn’t require a mathematical 50/50 division of time (that’s equal parenting time… the two are different), but it does require the substantial involvement of both parents in the child’s life, and the child having substantial physical time in the care of both parents.
Children’s educational and social development, mental health and physical health are best supported by post-separation shared parenting. The opposite can be harmful! We don’t expect you to take our word for it though… read the research!
His Honour Judge Bellamy expresses his views on secrecy in the family courts and the campaign efforts to open proceedings to scrutiny. Within this, he also issues a practice note to the local court in Leicester, setting out considerations for the publishing of judgments.
The main points of that guidance are listed below: Continue reading New Guidance for Local Courts on Transparency in Family Justice
Four ‘freepacks’ are back up on our site, and with content available to download now:
We offer 100 free online guides as well as court forms, draft court orders and case law which form part of our family law app. This content runs to over 1.5million words. Over 100 court judgments are included, and formatted as pdf files for download and printing.
We’ve 7 online family law quizzes currently available, and three can be downloaded for training purposes (including both questions and answers):