Government to bring forward an amendment to the Domestic Abuse Bill

The Government is bringing forward an amendment to the Domestic Abuse Bill inserting a new clause that would ensure that victims of domestic abuse are automatically eligible for access to special measures in family proceedings without the need for any determination of the victim’s vulnerability

This includes a new clause  given the Court the power to give a direction prohibiting cross-examination in person.

The direction will be given where such cross examination is likely to diminish the quality of the victim’s evidence or would cause significant distress to the witness

The court would have the power to appoint a legal representative to conduct cross examination on behalf of the perpetrator with payment made from central funds.

Further guidance is awaited.

This news is welcome. For too long, victims have been subject to cross examination by perpetrators. Currently, the Judge has limited powers only to prevent direct questioning, but this has the effect of making the process longer and more difficult.

The family courts make decision with lifelong consequences for children and it is essential that evidence is given that ensure a safe, lasting and satisfactory outcome for the child to ensure justice is done for all involved.

Graeme Fraser, Partner & Head of Family comments as follows:

This is welcome news, particularly at a time when domestic abuse has manifestly increased as a result of the Covid19 disruption and lockdown. We hope that these measures can be brought into force imminently so that justice can be done to all those affected.

 For information and advice in relation to domestic abuse issues, please contact the OGR Stock Denton Family Team.

Reflections on divorce and financial remedies after lockdown

Last week we hosted a webinar with guest speaker Max Lewis of 29 Bedford Row, where we discussed financial remedies on divorce and the future for family practitioners after lockdown which Graeme summarises for readers in this update.

The financial impact of the lockdown could lead to a spike in marriage rates, as well as divorce rates. We should not read too much into a surge in divorce filing in Wuhan immediately after lockdown. This is because remote filing is not possible in Wuhan and therefore the filing that took place on the first day resulted from the 3 month wait to leave the house. It is also believed that marital preservation is an immediate response to mortal threat which relaxes once the threat is less acute. People refrain from making major life changes under conditions of extreme stress, uncertainty and threat.

The impact of the lockdown may mean that those who were planning further children to delay. Once the lockdown has ended, there will be a return to social life, and the opportunities for marital infidelity. However, because Covid-19 will be in the community after lockdown ends, there will continue to be much uncertainty.

In order to reopen new cases, there must have been new events since the order which invalidate the basis or fundamental assumption on which the order was made, the events should have occurred within a relatively short time of the order being made, mainly not more than a few months, and the application should be made promptly (Barder). The turning point for the lockdown would appear to have been 22 February, when a dozen Italian towns in Northern Italy closed schools and businesses, so the time frame remains short perhaps back to the Summer of 2019.

Differences in value can arise however through “natural process of price fluctuation” which however dramatic can still fall within this principle (Cornick). This means that “what has soared may plunge and what has plunged may soar again”(Myerson) to the extent that shares that are not liquidated may mean that losses are not crystallised.

Where a settlement provides for a clean break, the Court retains complete jurisdiction until the order is put into effect (Thwaite). If there is some significant change in circumstances since the order was made, the Court may have jurisdiction to adjust a final order (L v L). Where any such revision is made, it should reflect the underlying and original intention of the parties (US v SR)

However, the assessment of assets must be those available at trial (Cowan) and this is the usual rule unless serious injustice would be demonstrated (FZ v SZ). It is entirely predictable that company or property valuers, be they accountants or surveyors, will soon be saying soon that it is quite impossible to put any meaningful figure on the value.

Applications for variation under S31 seem very likely, particularly in relation to income orders. Where orders for sale are being varied, that is likely to relate as much to the  process of the sale rather than the distribution of the sale proceeds.

Traditionally, the approach towards variation was to look at everything de novo (Lewis v Lewis) but the modern approach means that a light touch review is used where appropriate (Morris v Morris).

Issues likely to arise in future cases include earning capacity. Some sectors are more vulnerable than others as we emerge from lockdown. There may be arguments about schools and the payment of school fees. Can schools afford to continue if parents don’t pay fees? This is likely to further encourage use of term orders. Remote mediation seems a greater possibility in the sense that the couple need not be in the same room.

The early signs are that there are downsides to remote litigation, for example, being unable to look people in the eyes. The use of remote litigation is likely to be here to stay for directions appointment. Some of the technology has been a great success including electronic bundles, which may lead to greater e-disclosure and better use of document management software.

For future information or if you have any questions please do not hesitate to contact us.

Government funding for victims of domestic abuse

The government announces this week that it will pledge £76 million of funding to help support the victims of domestic abuse, a decision that has been welcomed by many including myself as a family solicitor. Whilst this is welcome start, it has been long overdue and comes at a time were many have been forced to adhere to lockdown measures and isolate with their abusive partner.

Government resources and funding for those suffering domestic abuse has been scarce, long overdue and insufficient for far too long now. It is a shame that it has taken the pandemic to shed light on the prevalence of domestic abuse and the fact that it occurs across all kinds of households and within many different familial relationships. I very much hope the Government maintains its support and focus on this issue once lockdown measures are eased but domestic abuse continues throughout our communities. It is important to note that whilst domestic abuse is overwhelmingly perpetrated against women and girls, it can also affect men and there have been a growing number of domestic abuse cases to illustrate this.

Those experiencing domestic abuse should know that they are not alone and they have a number of options available to them, during this pandemic and beyond it. Their safety, and those of any children, is the paramount consideration. I as a family solicitor understand that sensitive situations like this are complex and therefore require a tailored approach depending on the circumstances of each case.

We are here and able to assist you with legal advice that is best for you and your family.

Reducing conflict for child arrangements during the lockdown

There are unprecedented pressures on family law professionals, parents, and the Family Court.  Rather than throwing up our hands in horror, family lawyers have opportunities now to reduce conflict when negotiating child arrangements for separated families.

The CoVid19 Outbreak has created a significant increase in confusion and distress for parents. Family lawyers have received multiple enquiries about where children should stay, amid complaints that neither children are being returned nor being made available to spend time or live with the other parent. The social distancing measures are challenging enough for children who face disruption to their education, health and care arrangements, without the added burden of parental conflict.

On 24th March, Sir Andrew McFarlane, President of the Family Division, clarified that while children under 18 can be moved between their parent’s homes under the government guidance issued alongside the Stay at Home rules, this did not mean children must be moved between homes. If in agreement, parents could informally vary an order during the lockdown. However, if there is disagreement and one parent is concerned, that parent may exercise their parental responsibility and unilaterally vary the arrangement to one they consider is safe. Parental responsibility “rests with the child’s parents and not with the court”. The Family Court will only be able to look at the position retrospectively in deciding whether each parent acted reasonably.

The Remote Access Family Court announcement on 23 March, just prior to the Prime Minister’s lockdown announcement, purported “to continue substantially the full operation of the family justice system… notwithstanding the COVID-19 pandemic”. But following the above McFarlane guidance, HMCTS issued its Civil Court listing priorities on 1st April which emphasised that only priority work must be done. The upshot of all this, and my experience so far, is that many Family Court hearings are being postponed.

Child arrangements processes are in any event being steered away from court. On 2 April, The Private Law Working Group (PWLG) recommended a “radical system change for the benefit of future generations”. Sir Andrew McFarlane called for public education about the effects of parental conflict and professional support for families other than lawyers or judges so that courts should be seen as the last port of call when disputes arise.

None of these measures by themselves will prevent parents in dispute being positioned or hostile during the lockdown.  What can be done? There are useful approaches that can be taken now, that reduce adult conflict and ameliorate the pressures created by the lockdown and beyond.

Firstly, the CAFCASS guidance issued on 20th March provides helpful tips for co-parenting. These include:  maintaining a sense of routine for children, including meal and bed times; maintaining the child’s usual routine of spending time with each parent; complying with a Child Arrangements Order unless it would put the child or others at risk; and communicating clearly and honestly with the other parent if one parent is unable to maintain the child’s routine due to illness, self-isolation and non-availability of people who ordinarily support the child’s contact.

Secondly, there are a multitude of family law dispute resolution processes available where parents feel unable to negotiate without help. These include not only the established practices of mediation, collaborative law and arbitration, but newer methods such as parenting co-ordination. A therapeutic approach can be especially beneficial in resolving child arrangement disputes.

Finally, I am hopeful the collaborative approach needed to reduce confrontation and conflict between parents during the lockdown, because of the limited availability of the Family Court, may prove a lasting and kinder way to achieve better outcomes for the children of separating families.

 

 

Latest Family Q&A on COVID-19 measures

As we enter an intensive phase of the UK government’s containment measures for the COVID 19 outbreak, many couples and families now facing extended periods of social distancing and isolation. This will place a heavy burden for couples undergoing separation and divorce, often requiring full attention to childcare duties while schools remain closed.

Our family team answer some Q&A’s around this topic and things to consider:

I have been cohabiting with my partner for over a year and am worried about my situation should there be a break down in our relationship. We have always been focused on our jobs but the current situation presents a challenge as we are now both forced to spend a lot more time together than before. Should I worried about my rights?

We continue to campaign for the need to have urgent reform for couples who have lived together for a period of time, to enjoy certain right, as the position under English law is very different for married couples. The lack of legal protection is now accentuated when couples are confined to living under strict government restrictions.

We offer a full range of services to provide protection to those couples who wish to enter into agreements to regulate what happens when they live together and if their relationship ends

For further information please visit our cohabitation services page

Advice for people cohabiting who do not currently have a Will? 

 Many cohabiting couples do not fully understand their legal rights should their partner pass away. A cohabitee living with their common-law partner does not automatically inherit the property if the one of them die. The concept of ‘common law marriage’ is not recognised under English law. Cohabiting couples have very limited legal rights when it comes to claiming a share of their partner’s assets upon death. In fact, the only way a surviving common-law partner can inherit a shared property in the deceased’s sole name is if the deceased has clearly stated in their Will that the property will pass to their surviving partner when they die.

Statistically, very few people have a will. Those that do usually have a ‘home-made’ wills, with no proper legal advice, which can then give rise to legal disputes between family members about their validity.

When people do have a will and their relationship has broken down, they need to think about adjusting their living arrangements. If the property is in joint names they need to sever the joint tenancy.

My partner and I are separated with children. Can my partner still insist on spending time with children during this pandemic?

Children of separated parents can move between households during the coronavirus lockdown but it is best to get bespoke advice depending on the circumstances of each situation. It comes after minister Michael Gove reportedly “U-turned” on advice given to families following the introduction of strict new laws designed to keep people indoors (read full story here)

For further guidance, please visit Cafcass COVID 19 guidance or contact a member of our team today.

My son is on holiday with my ex-wife and is now stuck due to travel restrictions. What can I do?

This is a very difficult situation for the many UK citizens that are stuck abroad and unable to return home to the UK. The government has now announced that foreign office officials are working with major airlines, to arrange commercial flights to bring home UK citizens stranded in different parts of the world.

For further information on this please check the Foreign office’s latest travel advice

Use of video-conferencing and delays to the court system? How will this work with deadline? What is our advice to clients or those looking for help?

The systems being put in place can work if people are prepared to adopt them, although there is an element of them being voluntary. Litigants in person without legal representation may find this more difficult without easy access to technology. Digitalisation is feasible and the outcome of this crisis is that a number of previously largely untested processes such as Court videoconferencing are likely to be adopted on a permanent basis.

As a firm, our ability to provide a good service has not been affected, as we have the access facilities to allow our team to continue working remotely.

Do I have to continuing paying child maintenance and support?

The government has not provided further guidance on how this will work so it’s difficult to predict yet what approach will be adopted in the current situation.

Many may find  protection through the Government’s financial packages, which although not universal and may not cover a full salary or earning, should be sufficient to cover basic expenses during the current period of isolation and social distancing from others.

Parents will need to work together to ensure that their children are best looked after.

Advice for couples now forced to stay indoors?

Whilst the current situation is particularly challenging, many understand the need to work together in this difficult time and help respect each other’s privacy. Finding amicable solutions to differences with your partner could significantly improve the prospects of success of such arrangements.

This situation is unique. People have never been restricted to this extent during peacetime. Parents are being encouraged to use technology to allow their children to have regular time with other children and for parents to share home schooling ideas with other parents. Greater use of video conferencing and social media tools is a practical application of government advice that people need to communicate more and stay in touch.

Use of a family therapist could be considered, to help outline a home working arrangement, allowing both to be able to work and exercise in the same space. We work with many therapists.

We are fully operational remotely and are working hard to provide the best possible service for our clients. Most courts are still open and dealing with cases so it will not stop any ongoing proceedings but action may be needed to ensure that they are heard remotely. For further information on the above and all family issues, please contact a member of our team.