Today, family courts are largely concerned with the law relating to the family unit. They deal with:
Until 22 April 2014, family cases were dealt with at Family Proceedings Courts (which were part of the magistrates’ courts), at County Courts or in the Family Division of the High Court. From 22 April 2014, all family cases are now dealt with in the Single Family Court.
The number of cases that started in family courts in England and Wales in July to September 2015 was 61,449; nearly the same as that for the equivalent quarter of 2014, maintaining a steady flat trend. Nearly half of new cases are divorce cases (Family Court Statistics Quarterly England and Wales, July to September 2015, p 6, Ministry of Justice Statistics bulletin, December 2015).
As part of an effort to reform the family justice system, the Single Family Court, or Family Court as it is sometimes called, was created under the Crime and Courts Act 2013; the Family Court can deal with all family proceedings except those which have been exclusively reserved for the High Court. The creation of the Family Court was designed to give family matters their own unique place inside the justice system. Although magistrates’ courts and the new single County Court cannot hear family matters as of right, the Family Court can sit anywhere inside England and Wales and so it is able to sit inside county or magistrates’ buildings.
Before family matters in England were given their own arena by way of dedicated family courts, governed by the state and secular in nature, the regulation of family matters was the domain of the Church, which tolerated a great deal of informality in its day-to-day administration of family matters. This often caused difficulties where, for example, two women claimed to be married to the same man (polygamy was, and still is, illegal in England), and it was scandals of this nature which ultimately led to the first series of law reforms in this area and which saw sustained legislation governing things like the dissolution of marriage and disputes over matrimonial finances, and a shift away from the church to the state.
The Births, Deaths and Marriages Registration Act 1836 formally created the General Register Office for England and Wales (GRO), which is today where births, deaths, adoptions, marriages and civil partnerships in England and Wales are registered. Prior to the 1836 Act, registration was left to the Church and carried out through local parishes, but with the progressive relaxation of the law in this area, and the growing number of marriages that were subsequently going unrecorded, the government felt they had no choice but to consider full-scale reform. The Marriage Act 1836, which was passed at the same time as the Births, Deaths and Marriages Registration Act, set out in law the formalities for getting married, with a view to preventing clandestine marriages and creating a streamlined system for the registration of marriages.
Non-compliance with the conditions set out in the Marriage Act 1836 was viewed as a felony, and rendered an attempted marriage null and void. However, precedent from this era shows that a clear presumption in favour of marriage existed, and parties who failed to comply with the conditions set down for the creation of a marriage would often be spared from an annulment. This may have been due in part to the Marriage Act 1836 itself and its subsequent interpretation by the judiciary of the time, which provided that marriages would be null and void if the parties knowingly and wilfully married in breach of various provisions in the Act. Ignorance of the law, therefore, provided the parties with a legitimate excuse, and the judges with a loophole, for upholding marriages in breach of the law.
With legislative reform came the need to look at the various forums in which matrimonial matters could be heard. Traditionally, Ecclesiastical courts presided over family matters, but with the passing of the Matrimonial Causes Act 1857 came the creation of a new court: the Court for Divorce and Matrimonial Causes, which effectively saw all family matters transferred to its jurisdiction. This court was then replaced in 1873 by the Probate Divorce and Admiralty Division, which was renamed the Family Division with the passing of the Administration of Justice Act 1970.
Family courts are broadly divided into two areas: private and public family law. These areas are not mutually exclusive, as private family cases can often become public in nature, where, for example, a concern over a child’s living arrangements may reveal more serious concerns about that child’s day-to-day care. However, public family law cases must always start in the Family Proceedings Courts, though they can be transferred to County Courts to minimise delay, to consolidate proceedings or where the matter is exceptionally serious, complex or important.
Family court judges are charged with handling cases arising from these areas of law, which typically result in a series of directions, or orders, requiring a person to do or not to do something.
Private family law matters are brought by individuals, such as parents, spouses and next of kin, usually in connection with a divorce or parents’ separation. Judges dealing with these matters can make various orders, including:
Public law cases are usually brought by local authorities (although the NSPCC, as an ‘authorised person’, currently also has powers to bring such cases), and can include issues such as:
In August 2013, the Children and Family Court Advisory and Support Service (Cafcass), a non-departmental public body set up to safeguard and protect the welfare of children involved in family proceedings, received a total of 4,053 new private law cases (Cafcass Private Law Demand, August 2013 statistics, 9 September 2013). In July 2013, Cafcass received 870 care applications (Cafcass Care Applications, July 2013 statistics, 8 August 2013), a record month for care applications with the second highest number of care applications in a single month.
Adoption rates, too, have soared: the Department for Education reported in 2013 that 3,980 children were adopted between April 2012 and March 2013, up from 3,470 the previous year. This is higher than in any year since 1992, when comparable records began (Statistical First Release, Department for Education, 26 September 2013, SFR36/2013). It has been suggested that the increase in adoption rates is attributable to the government’s efforts at finding loving homes for children in care (‘Adoptions show “record” increase’, BBC News online, 26 September 2013), though some argue that the increase is driven by a lucrative business which sees foster carers and the government profit from adoption agreements (‘Big money to be made in the adoption trade’, The Telegraph online, 19 June 2010). In recent times, however, there has been a significant reduction in adoptions. During July to September 2015, there were 1,463 adoption orders issued, down 17 per cent for the equivalent quarter in 2014. In 65 per cent of these, the adopters were a male/female couple, while in 18 per cent the adopter was a sole applicant (Family Court Statistics Quarterly England and Wales, July to September 2015, p 22, Ministry of Justice Statistics bulletin, December 2015).
The Children Act 1989 came into force on 14 October 1991 and was designed to:
reform the law relating to children; to provide for local authority services for children in need and others; to amend the law with respect to children’s homes, community homes, voluntary homes and voluntary organisations; to make provision with respect to fostering, child minding and day care for young children and adoption; and for connected purposes.
(the Children Act 1989, introductory text, 18 November 1989)
It is the most important piece of child protection legislation in the United Kingdom. The Children Act 1989 is designed to make the welfare of every child the primary, or paramount, concern in cases involving children. This is often referred to as the ‘paramountcy principle’.
The guiding principles found within the Children Act 1989, which apply to all proceedings concerning children brought under the Act, are:
Covering a broad range of issues relating to children, and encompassing both private and public family law, the Children Act 1989 deals with:
The Act’s central principle focuses on the idea that responsibility in the first instance for a child’s upbringing rests with that child’s family, and that for the majority of children, their interests will be best served within their family unit. When that is no longer the case, the Act allows for government agencies to support the family where necessary, and to protect children where required. It also emphasises the need to ensure that all children and young people going through the family courts are consulted and are as fully informed as possible about decisions relating to them.
Family legal aid covers both public and private law, and includes matters relating to the Children Act, domestic abuse, financial provision and mediation. As resources in the family justice system become scarce, largely due to ailing economic conditions, legal aid, which offers support through public funding, to families who are unable to pay for legal advice or proceedings, has been drastically reduced for civil cases by the newly enacted Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) which came into effect in April 2013. As a result, only a very narrow set of family cases are now eligible for legal aid, including:
Successful applications are now also dependent upon a further condition: evidence of abuse must be produced before legal aid may be granted.
Providing some relief to the very limited circumstances in which legal aid may now be considered for family matters is the Exceptional Cases Funding Scheme (ECF). The scheme allows cases to be considered if failure to grant legal aid would result in a breach of a client’s rights under the European Convention on Human Rights (Lord Chancellor’s Guidance on Exceptional Funding (Non-Inquests)).
Legal aid statistics produced for 2014 by the Ministry of Justice highlight a startling decrease in legal aid for family law matters, with a 60 per cent drop compared to figures for 2012. The largest drop was seen within private law Children’s Act proceedings (there were 30,000 fewer certificates granted), and is attributed to the implementation of LASPO. Public family law cases were less affected, as they are driven by Local Authority applications to issue proceedings and are non-means and merits tested (Legal Aid Statistics in England and Wales, Legal Aid Agency, Ministry of Justice, 24 June 2014).
In 2015, the key issues of the family justice system include the increased number of litigants in person (21 per cent over one year); the lack of legal aid in family cases was cited as the most substantial problem of the system by 17 per cent of specialist lawyers responding to questions from the accountancy firm Grant Thornton, while the courts generally not being ‘fit for purpose’ was the main difficulty cited by 14 per cent (Matrimonial Survey 2015, Grant Thornton, 1 December 2015).
The National Audit Office has shown that across all family court cases starting there was a 30 per cent increase in those in which neither party had legal representation in 2013–14 compared with 2012–13 (Implementing reforms to civil legal aid, Report by the Comptroller and Auditor General Ministry of Justice and Legal Aid Agency, National Audit Office, HC 784 Session, 014–15 20 November, 2014) and in the first quarter of 2015, 76 per cent of private family law cases had at least one party who was not represented (Lord Falconer, Five years in the death of the British justice system, New Statesman, 8 September 2015).
The Justice Committee, which is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies, has also reported on this issue. It noted (Justice – Eighth Report, Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015, para 92):
The National Audit Office in its report, Implementing the civil legal aid reforms, found the number of cases in which neither party in a family law case had representation had increased by 18,519, around 30 per cent of all cases. In the first quarter of 2014, 80 per cent of all private family law cases had at least one party that was not represented. In contrast, the Minister told us, however, that the number of litigants in person in private family law cases had only risen by a ‘small percentage’ from 66 per cent of cases in which at least one party was not represented to 74 per cent. An additional complication is that the number of cases in the family courts has dropped since the introduction of the legal aid reforms by around 40 per cent. Whatever the true figure may be, evidence we have received strongly suggests not only a significant increase in parties without legal representation but also that litigants in person may be appearing in more complicated cases or be less able to represent themselves.
A steady decrease in public funding has led to an ever-widening gap in the system, leading to a rise in the number of court-goers representing themselves in family proceedings, as they are unable to afford legal representation but do not qualify for legal aid. Once referred to as self-represented litigants (SRLs), members of the public who process their own cases or represent themselves in court are now called Litigants in Person, or LIPs (Terminology for Litigants in Person, Practice guidance issued by the Master of the Rolls, Lord Dyson, 11 March 2013). As early as 2005, and based on an analysis of 1,334 family cases, a study found that 64 per cent of private adoption cases and 60 per cent of divorce cases featured at least one self-represented litigant (R Moorhead and M Sefton, ‘Litigants in Person: unrep-resented litigants in first instance proceedings’, DCA Research Series 2/05, March 2005, Cardiff University (Department for Constitutional Affairs), p 97). In the first quarter of 2014, 74 per cent of private law children’s cases featured at least one self-represented party (Court Statistics Quarterly, January to March 2014, Table 2.4, Litigants in Person in Private Family Law Cases, Ministry of Justice Analytical Series, 2014).
A Litigant in Person may choose to process their case solely on their own, or sporadically seek out legal assistance, rather than pay for long-term legal representation, which lowers costs and helps the LIP if they are not fully aware of the law surrounding their case. An increase in LIPs in the family courts has led to an increase in the use of lay advocates, known as McKenzie Friends. A McKenzie Friend is able to assist a self-represented litigant by:
(Practice Guidance, McKenzie Friends (Civil and Family Courts), 12 July 2010).
McKenzie Friends vary in experience and competence, usually charge less for their assistance than solicitors and barristers, and often work for free. The name derives from a case in which the role was first recognised, McKenzie v McKenzie (1970). As the demand for McKenzie Friends has steadily increased inside the family justice system, a call to consider regulating their activity was made in April 2014 by the Legal Services Consumer Panel, with a view to protecting litigants in person from poor advice and unreasonable charges (Fee Charging McKenzie Friends, The Legal Services Consumer Panel, April 2014). However, there is a view that regulating the McKenzie sector at this time may deter lay advisers and reduce the level of support that litigants in person so desperately need as they try to navigate the system without conventional representation.
Reformation of a system can be viewed as a healthy response to environmental and societal changes, and an increased understanding of what needs to be improved upon. Yet it can also be the result of ongoing difficulties which are not properly addressed in the first instance. The family justice system is continuously trying to adapt to the ever-changing dynamics of society, but a lack of government funds and a slow turn-around time to implement much-needed changes on the ground means that the system continues to find itself subject to review and, ultimately, reform.
The latest series of recommendations for reform stem from the Family Justice Review, a report which focused on examining possible areas for reform with the family justice system, and which was published on 3 November 2011. The government’s response to that review was laid before Parliament on 6 February 2012. A judge within the family courts, Mr Justice Ryder, was appointed by the then President of the Family Division, Sir Nicholas Wall, to make judicial proposals for what has been termed ‘the modernisation of family justice’. The proposals were designed to make the family courts simpler and easier to use.
The proposals contained two key elements:
The key areas for reform included:
(Judicial Proposals for the Modernisation of Family Justice, Mr Justice Ryder, July 2012).
Areas which remain untouched by the reforms include:
Speaking at the national conference of Resolution, an organisation made up of family lawyers who practice a collaborative approach to handling family cases, Mr Justice Ryder said the aim of the reforms was to ‘create a new court and better processes that work in the real world’, which could only be achieved through a ‘revolutionary culture of change’ (Resolution National Conference, Stratford-upon-Avon, 12 April 2013). Many of the reforms have now been implemented, but it remains to be seen whether they are improving the quality of, and access to, justice.
Prior to 2009, only specific courts could be opened up to allow reporting of family matters, and members of the public and the media were often barred from attending family hearings.
However, on 27 April 2009, all levels of the family courts were opened, but only to accredited members of the media: qualified journalists working for authorised news outlets. Courts are still able to restrict access to hearings if they consider it to be in the best interests of any children involved, or to protect parties or witnesses in the case, who are also able to request such a restriction on their own behalf.
Courts also have the power to restrict what can be reported if they feel it would protect the welfare of any child or families involved in the proceedings. The court may also relax reporting restrictions in individual cases if they feel it would be appropriate or in the public interest to do so.
Further clarification on the position of media reporting by the President of the Family Division, Sir Nicholas Wall, consolidated and smoothed out some of the tensions between open justice, the need for justice to be seen to be done, and privacy and confidentiality concerns (A Wolanski and K Wilson, ‘The Family Courts: Media Access and Reporting’, Resources, Judicial College Office, Guidance, July 2011), but his successor, Sir James Munby, took reformation in this area a step further.
An outspoken advocate for greater transparency within the family courts, Sir James Munby released a draft Practice Guidance on media reporting, which was widely welcomed by the media, the general public and some members of the legal profession. The Practice Guidance, which has been issued for consultation and comment and is designed to be a guide for legal practitioners, recommends that decisions of family courts should always be published, unless there are compelling reasons against publication, and that some judgments should be published in anonymised form, where appropriate (‘Transparency in the Family Courts and the Court of Protection, Publication of Judgments’, Draft Practice Guidance, Sir James Munby, President of the Family Division, July 2013).
Section 12 of the Administration of Justice Act 1960 currently makes it a contempt of court to publish a judgment in a family court case involving children, unless the judgment has been delivered in public, or the judge has authorised publication. The July 2013 Practice Guidance effectively creates a presumption that all judgments should be published, unless compelling reasons exist to prevent publication and keep them private. The underlying notion of openness in family proceedings stems from a longstanding tenet in English law that any justice system should be transparent in its day-today workings, and allow itself to be examined by the very people who use the system.
The presumption of publication is wide and includes:
In all other cases not specifically mentioned in the Practice Guidance, the Guidance suggests that a presumption of publication exists where:
The Guidance suggests that reporting of cases and the extent to which a judgment is anonymised should be decided on a case-by-case basis, and places emphasis on ensuring anonymity does not extend beyond protecting the privacy of the families involved, unless there are good reasons to do so. The Draft Guidance also recommends that restrictions on reporting should be limited and that public authorities and expert witnesses should be named unless there are compelling reasons not to, a broad departure from previous reporting restrictions which shielded expert witnesses, for example, from being named in reported judgments. The number of judgments and family cases which explicitly reveal the names of expert witnesses has steadily increased over the last decade, allowing for debate over concerning issues inside the family courts (see for example ‘The doctor who took my baby away’, The Telegraph online, 1 April 2012).
The Practice Guidance is part of an incremental approach to increasing transparency in the family courts. Following a family case over which Mr Justice Munby presided, he said:
We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice… The remedy, even if it is probably doomed to only partial success, is… more transparency. Putting it bluntly, letting the glare of publicity into the family courts.
(Daily Telegraph, 5 September 2013)
Family law affects every area of life and often incites policy-makers and governments to address some very difficult questions, questions which can be highly controversial in nature.
The gradual decline in the twentieth century of people getting married, and an increased trend in divorce, has sparked an ongoing national debate about whether society is taking a step back or merely moving towards a way of life which is better suited to the human condition. And as more and more people choose cohabitation (living with a partner rather than being married or in a civil partnership with them, sometimes for many years) as a means of expressing their togetherness, family law has found it challenging to adapt to such choices.
In an attempt to reconcile the gaps in the law between married couples and cohabiting ones, Lord Lester proposed the Cohabitation Bill in 2009. The Bill sought to give cohabiting couples the right to make a claim for financial provision at the end of their relationship, either through separation or death – a right which is currently afforded to married couples. The Bill, although widely welcomed by family lawyers, was also opposed by some academics and peers in the House of Lords. Other dissenters took the view that people who chose to cohabit did so because they were making a conscious choice to opt out of formal legal commitments. At present, the Bill sits in limbo in Parliament and has not yet been ratified.
Official figures from the Office of National Statistics show that the number of people choosing to cohabit has doubled since 1996. This makes cohabitation the fastest growing family type in the United Kingdom (Short Report, ‘Cohabitation in the UK’, 1 November 2012).
Between 2011 and 2012, the number of divorces in England and Wales has increased from 117,558 to 118,140, a 0.5 per cent rise, with the highest number of divorces among men and women between the ages of 40 and 44 (‘Divorces in England and Wales 2012’, ONS, Statistical Bulletin, 6 February 2014). However, the number of marriages increased also, by an estimated 5.3 per cent to 262,240 from 249,133, in 2011 (‘Marriages in England and Wales’, (Provisional) ONS Statistical Bulletin, 11 June 2014).
Domestic violence affects family units all over the country. The Home Office estimates that in 2011, 7 per cent of women aged 16 to 59 were victims of domestic violence; a further 5 per cent were men (British Crime Survey, ‘Crime in England and Wales, 2010/11’, July 2011).
The definition of domestic violence, which extends to include 16- and 17-year-old victims, is defined under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (as amended) as:
any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
This definition came into force on 31 March 2013, and includes the remarkably mis-named ‘honour’ based violence, female genital mutilation (FGM), in which women and girls are forcibly mutilated in order solely to prevent them from experiencing sexual pleasure, as well as forced marriage.
Although domestic violence is viewed as a phenomenon which does not directly involve children in the family unit (emotional or physical harm experienced directly by children is usually addressed under the umbrella terms of abuse or neglect), it has been acknowledged that children who witness acts of domestic violence are in fact impacted and affected by it (Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48). The NSPCC reported that in one study of 139 serious case reviews in England between 2009 and 2011, 63 per cent of cases were found to have domestic abuse as a risk factor (New Learning From Serious Case Reviews: A Two Year Report, 2009–2011, Department for Education, 2012).
Legal aid cutbacks have also had an impact on domestic violence cases, with leading charities warning that the new measures are putting children and women’s lives at risk (M O’Hara, ‘“Women will die” as legal aid becomes more difficult for victims of legal abuse to get’, The Guardian, 10 September 2014). In R v (On the Application of Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, a case brought by the Public Law Project (PLP) on behalf of the charity Rights of Women, the Court of Appeal ruled that evidence requirements which had been operating to prevent survivors of domestic abuse from getting legal aid for family cases were unlawful. Although survivors of domestic violence were eligible for legal aid, applicants had to provide very specific evidence to prove their eligibility – evidence which was often difficult to get, particularly where applicants had suffered non-physical forms of abuse. In many cases it was also subject to a 24-month time limit, although evidence showed that perpetrators often remain a threat to survivors long after that period. The Court described a ‘… formidable catalogue of areas of domestic violence not reached by a statute whose purpose is to reach just such cases’ [para. 44].
In February 2017 the government announced its intention to strengthen the law relating to domestic abuse, the Prime Minister Theresa May stating that she personally would take charge of preparations for a Domestic Violence and Abuse Act, with the aim to increase support for victims and ensure a common and comprehensive treatment across the UK in dealing with the issue.
The culture surrounding children who are involved in family proceedings is fast becoming one of the most controversial areas of family law. With children increasingly either electing or being coerced by parties to become more involved in their own cases, the courts have found themselves under pressure to reform this area of family law, while maintaining appropriate levels of protection and privacy for children in these proceedings. This area of family law has come to be known as the Voice of the Child, and focuses exclusively on finding ways to include children who wish to be a part of the process, while balancing privacy and welfare needs of those children at the same time.
The first major step towards reform in this area occurred in 2010, when the Family Justice Council, a body set up to promote collaboration among professionals within the family justice system and to monitor the system, together with the Voice of the Child subcommittee, released guidelines for judges prepared to meet children going through proceedings (‘Guidelines for Judges Meeting Children who are subject to Family Proceedings’, April 2010). Although limited in its scope (the guidelines do not require judges to speak with children who wish to meet with them, and only allow a narrow range of subjects to be discussed, all linked to procedure rather than substantive issues in the case), it marked a significant shift away from a working culture which had traditionally kept children at arm’s length.
In a further move to support and understand children better, the Voice of the Child sub-committee was asked to prepare another report, this time by the Children’s Commissioner, in the form of a series of interviews with children as young as three who had experienced family proceedings. The report highlighted the need to look at the way proceedings might affect children, to make information more child-friendly and to give children the opportunity to produce a plan detailing how they would like to be supported and have their voice heard (‘Do more than listen. Act’ – Consultation response to the Family Justice Review undertaken for the Family Justice Council’, 27 July 2011).
And in July 2014, at the newly established Voice of the Child Conference, Justice Minister Simon Hughes announced that children inside the family courts would be listened to and heard more effectively, with the government committing to allowing children as young as 10, and younger where appropriate, to have access to judges to make their views and feelings known (‘Children will be seen and heard in family courts’, government press release, 25 July 2014).
The future of family law, while uncertain, and for all the controversy it courts, is a hopeful one. As society changes and our understanding of the human condition evolves, the family courts too must keep pace with and react to those changes. The modernisation of the family justice system in the twenty-first century is perhaps one of the most exciting periods in history for the family courts, and for its impact on future generations.
The enactment of the Marriage (Same Sex Couples) Act 2013 made provision, for the first time, for the marriage of same-sex couples in England and Wales. Maria Miller MP, who sponsored the Bill, told the media that the passing of the Bill was ‘clear affirmation’ that ‘respect for each and every person is paramount, regardless of age, religion, gender, ethnicity or sexuality’. However, not everyone backed the Bill; the Conservative MP Sir Gerald Howarth viewed the Bill as having ‘absolutely no mandate’ (BBC News online, 17 July 2013). The first same-sex marriage ceremonies took place on 29 March 2014.
Other areas of family law, too, are wading into increasingly controversial waters. The Family Drug and Alcohol Court (FDAC), set up in 2008 by a pioneering family judge, District Judge Nicholas Crichton, has been accused of being a violation of judicial power, due to the extent of the interaction between judges in these courts and the families that come before them (BBC Radio 4, Law In Action, 15 March 2012). The judiciary did not agree though, and since its inception, FDAC, which uses a different approach from that adopted by mainstream family courts to help families with substance abuse, has won awards for its work and continues to lead the way in effective and humane care of families struggling with drug and alcohol addiction. Statistics for FDAC show that at the time of the final court order, 39 per cent of FDAC mothers were reunited with their children, compared to 21 per cent of mothers from a comparison group in ordinary care proceedings. There was also a marked reduction in costs for local authorities, as children stayed with their parents, care placements were shorter and there were fewer contested cases (Family Drug and Alcohol Court (FDAC), ‘Evaluation Research Study’, Brunel University, 2008–10).
Family courts are concerned with the law relating to the family unit. They deal with:
Jurisdiction to hear these matters is conferred to Family Proceedings Courts, which are specialist magistrates’ courts, as well as County Courts and the Family Division of the High Court, through the umbrella of the Single Family Court, which may sit anywhere in England and Wales.
Family courts are broadly divided into two areas: private and public family law. These areas are not mutually exclusive, as private family cases can often become public in nature, where for example a concern over a child’s living arrangements may reveal more serious concerns about that child’s day-to-day care. However, public family law cases must always start in the Family Proceedings Courts, though they can be transferred to County Courts to minimise delay, consolidate proceedings or where the matter is exceptionally serious, complex or important.
Family court judges are charged with handling cases arising from these areas of law, which typically result in a series of directions, or orders, requiring a person to do or not to do something.
Private family law matters are brought by individuals, like parents, spouses and next of kin, usually in connection with a divorce or parents’ separation. Judges dealing with these matters can make various orders, for example to control who holds the legal rights and responsibilities for a child.
Public law cases are usually brought by local authorities (although the NSPCC, as an ‘authorised person’, currently also has powers to bring such cases), and can include issues such as:
The Children Act 1989 is designed to make the welfare of every child the primary, or paramount, concern in cases involving children. This is often referred to as the ‘paramountcy principle’. This means the welfare of the child will be the paramount consideration for all decisions made under the Act.
Legal aid has been drastically reduced for civil cases by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. As a result, only a very narrow set of family cases are now eligible for legal aid, and include:
The latest series of recommendations for reform stem from the Family Justice Review. A judge within the family courts, Mr Justice Ryder, was appointed to make judicial proposals for what has been termed ‘the modernisation of family justice’. The proposals were designed to make the family courts simpler and easier to use.
The proposals contained two key elements:
Key areas which have been reformed:
The definition of domestic violence, which is not a legal formula, was recently extended to include 16- and 17-year-old victims, and is legally defined as:
any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
This definition came into force on 31 March 2013, and includes female genital mutilation (FGM) in which women and girls are forcibly mutilated in order solely to prevent them from experiencing sexual pleasure, and forced marriage.
Cretney, S, Family Law in the Twentieth Century: A History, 2003, Oxford: OUP
Hewitt, L and Hughes, S, ‘The changing Face(book) of family law’ (2013) NLJ 7555
Ministry of Justice, Family Court Statistics Quarterly, England and Wales, July to September 2015, Ministry of Justice Statistics bulletin, December 2015
Moorhead, R and Sefton, M, ‘Litigants in Person: unrepresented litigants in first instance proceedings’, DCA Research Series 2/05, March 2005, Cardiff University (Department for Constitutional Affairs)
Munby, J, ‘Sloppy practice in adoption’, 20 September 2013, NLJ online
Wall, N, ‘Changing the culture’, 29 November 2011, Judiciary of England and Wales
Waller, P, ‘Going the distance’, 4 May 2012, NLJ online
Wolanski, A and Wilson, K, ‘The Family Courts: Media Access and Reporting’, Resources, Judicial College Office, Guidance, July 2011
http://unsafespaces.com/
The Not So Big Society Blog.
www.coram.org.uk/supporting-parents/family-drug-and-alcohol-court
The Family Drug and Alcohol Court.
https://www.publications.parliament.uk/pa/cm/cmallparty/170215/family-business.htm
All Party Parliamentary Group on Family Law and the Court of Protection.
http://researchingreform.net
Researching Reform.
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