Co-authored by Kate Elliott. With thanks to QEB, 1 Crown Office Row, 1KBW and 36 Family for their contribution.
In case you missed it – Family Law Partners turned ten last week – and we thought what better time with hope on the horizon for a gradual relaxation of lockdown 3.0, to start looking forward to the decade ahead and what that might bring. Many are predicting a return of sorts to the “roaring 20s” when COVID19 restrictions are finally lifted in full, and we can all leave our houses and 21 June is certainly now being hailed as the date we all don our glad rags and head to the nearest nightclub! It’s a wonderful thought, and we believe we speak for many when we say bring on the free-flowing champagne and the dancing all night long that comes to mind when you think of the roaring 20s.
But what for family law? Not typically an area associated with champagne and dancing, but without doubt clients and practitioners alike will be looking forward to a time when the challenges they face do not include lockdowns, closures of family courts, last-minute adjournments and bad WIFI connections during a hearing. We hope (as we are sure everyone does) that the next decade will not be defined by COVID19 in the way the last year has and by 2030 we will all look back at this strange time as a distant and not so fond memory.
In the second part of our two-part blog – prepared in collaboration with QEB, 1 Crown Office Row, 1KBW and 36 Family – we turn the focus away from lockdown to consider what we can look forward to and/or brace ourselves for in the world of family law.
So without further ado – the top ten predictions from our marvellous panel of family law experts:
Perhaps most obvious in terms of immediate changes to family law will be the introduction of no-fault divorce this year. Less a prediction and more a known and imminent change, it is the impact of this amendment to the law which we will see develop over the next 10 years. Our prediction: by 2030 we will all be nostalgically waxing lyrical to trainees and law students about the lost art of drafting an unreasonable behaviour petition.
So what impact will no-fault divorce have? Duncan Brooks, Andrew Campbell and Thomas Haggie at QEB “expect that this small development will make life easier for couples to conceptualise their divorce as a blame-free act, and hope that this allows them to target their energy on thinking more productively about their future co-parenting relationship, their finances, and their own emotional state.”
Whilst no-fault divorce will certainly avoid the need for parties to put their feelings down on paper, that will not necessarily equate to feelings of ‘blame’ going away or that those feelings will not be shared with the other party. In our view, those cases which proceed relatively amicably and by agreement will continue to do so regardless of what the divorce petition says and those cases where acrimony and hurt cloud the decision-making (financial or in relation to the children), sadly may continue in the same vein as they would have done prior to no-fault divorce. Our view is that real change would dovetail with the move to no-fault divorce if practitioners were more open to encouraging clients to embrace therapeutic support to help them process and manage the emotional fallout of the end of a relationship at the time they are first instructed.
We worry however that even when no-fault divorce eventually comes into practice that there will still be those individuals who wish to throw the kitchen sink at their partner and we predict that those going through a high conflict divorce could insist on placing blame in other documents (Form E, bad behaviour, comes to mind) as inevitably there will be those practitioners that allow them to do so.
We welcome no-fault divorce as a positive change in family law, but we wait to see what impact this has on the ground. We remain sceptical that real change will only come when better emotional support becomes part of the mainstream process (and perhaps even funding for such support from the government…).
An area that the majority of our panel agree will see changes over the next 10 years are the rights of cohabiting couples. Andrzej Bojarski at 36 Family predicts: “an Act providing for some degree of discretionary financial provisions for unmarried parties after a substantial cohabiting relationship.”
Duncan, Andrew and Thomas at QEB take a philosophical view on this and we agree with their (again beautifully worded) summary: “as the state withdraws from policing intimate relationships, the distinction in financial treatment between cohabitants and married people becomes arguably harder to sustain. In a society that appears morally neutral about the decision to both enter and leave the state of matrimony, it is surprising that this is the sole group of people who are afforded the benefit/burden of financial remedy claims. It may not be one for the 2020s, but we predict England may be on the road to a ‘family financial remedies law’ where the right to claim is built not on marriage, but on the fact of cohabitation for a period or children. This is the state of the law in jurisdictions such as New Zealand, and may fit a diverse society such as our own rather better than the law we have.”
Whether this area of law will be given the time and focus needed for meaningful change over the next 10 years remains to be seen – and in our view may largely depend on whether government is otherwise engaged with global pandemics – but the wheels have been set in motion and we hope that by 2030 there will at least be further clarity for cohabiting couples and recourse to something slightly less complicated than TOLATA!
It goes without saying that the Guidance of the Treatment of Pensions on Divorce report (fondly referred to as PAG) has had a material impact on financial remedy matters since its publication in 2019. We also fully anticipate that this impact will continue and develop over the next 10 years and we went straight to the horse’s mouth for a view on what this might look like.
Rhys Taylor of 36 Family shared the following:
It is likely that the Pension Advisory Group Report (2019), and its sister Lip version, the Pension on Divorce Survival Guide (2021), will have caused practitioners to think more carefully about the manner in which pensions on divorce are approached.
One of the reasons for the PAG coming into being was the paucity of guidance from the courts. In W v H HHJ Edward Hess referred to the PAG report as being “prima facie persuasive in the areas it has analysed, although of course susceptible to judicial oversight and criticism.” Along with W v H there have been a couple of other circuit judge decisions (on appeal) posted on Bailii in 2020. Recently, pensions were the subject of consideration by the Court of Appeal in the case of Finch v Baker  EWCA Civ 72. However, in that case, there was no call for the PAG report to be considered, the case turning largely on procedural issues which had arisen in the courts below.
It is a curious feature of financial remedy practice that, in the main, the only cases which get reported relate to very large money cases which bear little resemblance to how this area of work is conducted up and down the jurisdiction. I predict that a case will, sooner or later, have to deal with some of the fundamental issues which arise in this area of practice:
These kinds of conundrums are debated every day in financial remedy cases and many tens of thousands of pounds turn can turn on these rather obscure points. I predict that sooner or later these points will have to be debated in the higher courts.
We touched on the B-word in part one of this two-part series and could write an entirely separate piece on Brexit and how this will impact family law in this jurisdiction. Today we summarise, and Duncan, Andrew and Thomas at QEB helpfully outline the key changes: “for proceedings instituted after 31 December 2020 (broadly speaking), EU regulations cease to have effect; which means, in particular, no Brussels II Revised and no Maintenance Regulation, as well as no EU Service Regulation (2007/1393/EC), Mediation Directive (2008/52), Taking of Evidence Regulation (2001/1206). Specific changes include the forum for divorces and maintenance cases no longer being determined by lis pendens / first to issue, creditors and debtors in maintenance cases no longer being governed by the Maintenance Regulation but by the 2007 Hague Convention on the International Recovery of Child Maintenance, and an abandonment of Brussels II Revised for cases involving children.”
It’s a brave new world and we are all going to need to familiarise ourselves with a new relationship with the EU and ensuring that we are “constructively co-parenting” when it comes to cases involving multiple jurisdictions and/or ties with the EU.
We are already seeing a move towards a different approach to first hearing case management, both in finances and children. At Aldershot and Farnham Family Court, District Judge Britton has developed a standardised first directions order which is sent to the parties on issuing of Form A with a listing date for FDR and provision for the most typically ordered directions (instruction of experts, valuing assets, replying to questionnaire). Whilst this is an admirable attempt to skip out a first hearing and case manage from afar, “one size fits all” rarely works in family law and receipt of this standard order can cause more issues than it resolves as inevitably one or both parties are unhappy and must apply to the court to have a first hearing listed in any event to narrow the directions sought and ensure the matter is dealt with proportionately.
It is a start though, and Duncan, Andrew and Thomas at QEB recognise that parties are often frustrated by the lack of progress made at the first hearing in both finances and children matters. They look to Canada’s approach of “triaging” cases to actively case manage before anyone steps foot in a court room. They predict that the English courts may follow a similar route and that courts will look to: “case manage disputes at an early stage and/or to refer the parties to out-of-court dispute resolution in view of the issues, rather than simply a blanket requirement for a MIAM. We predict that, in the light of growing demand for court time, this is an area that is ripe for improvement.”
Again, this goes to the point that one size fits all does not fit family law – we challenge you to find two families who fit precisely the same profile with precisely the same issues in contention – and attempts to become more efficient in the court system will need to take this into account. In private law children cases, the courts are beginning to move towards this, and some cases are not having a first hearing listed until the CAFCASS safeguarding letter has been received and the issues identified by the C100 and CAFCASS are considered by a judge. The practical issue with this on the ground is delay and sadly it feels in practice like the court buying itself time whilst it deals with the backlog it is currently facing.
It remains to be seen whether this will improve efficiency or not, but it is noted that the court system is slowly but surely trying to adapt and come up with new ways to manage its case load. This is essential over the next 10 years and what we truly hope to see is a vast improvement in the efficiency of the family court to avoid it becoming a wholly blunt instrument over the next 10 years.
A new one for us but in their prediction for the next 10 years 1 Crown Office Row has helpfully drawn our attention to The Transparency Project and how this might impact the openness and sharing of details of family law cases going forward:
“In 2009 new rules come into force governing the attendance of media representatives at family proceedings. The Family Proceedings (Amendment) (No.2) Rules (SI 2009 No 857) insert into the FPR 1991 a new rule 10.28 which permits ‘duly accredited’ media representatives to attend family proceedings.
The accompanying practice direction states that media representatives should be allowed to attend family proceedings, subject to the court’s discretion. This discretion can be exercised on a wide variety of grounds, including; the welfare of a child or vulnerable adult, or for the ‘orderly conduct of the proceedings’.
Some expected the new rules to ‘open the flood gates’ to media representatives seeking to attend hearings. This did not appear to have been the case. Instead, there remains a concern that family proceedings are held ‘behind closed doors’ and with a lack of transparency.
To address this concern, The Transparency Project has played a key role in opening up debate in respect of how transparent the family court is and what more can be done to engendered trust in the family justice system. It is hoped that with the increase in blogging and reporting in respect of family cases that by the end of the decade there will be less suspicion in respect of how the family courts are run and thus a greater level of trust.”
What we hope this may achieve is a slight pressure point to push the courts to adapt, become more efficient and improve the way in which cases are managed as what they do and how they run things becomes increasingly under the microscope/shared with the public.
We mentioned ADR (obviously) in part one but here we take a different focus. In our view one of the factors preventing ADR from becoming more widespread is the lack of training offered to practitioners from an early stage in their career. The process of qualifying as a lawyer is already adapting and moving with the times and alternative routes to qualification are becoming more widespread. As part of this change, we predict that in family law training specifically to achieve at least one ADR qualification will be required, and students and trainees will need to demonstrate a familiarity and experience with ADR before qualifying and gain those essential soft skills that can make all the difference for the families we work with. At Family Law Partners HQ we agree wholeheartedly with this and as such we are committed to ensuring that every member of our fee earning team gets one or more DR badges.
We’re back in agreement with QEB on this one and Duncan, Andrew and Thomas take the view that: “NCDR [non-court dispute resolution] should become part of the qualification process. Practitioners will qualify and be comfortable with each field, and be willing to use elements of each option to help the separating couple disengage elegantly.” (FYI – we’re stealing “disengage elegantly”, what a fabulous phrase).
As well as targeting education to promote ADR, we look forward to the court taking a more active and robust case management role when it comes to referring parties to ADR. More often than not, the main obstacle to parties entering into an ADR forum is the fact that one of them will not agree or engage. In these circumstances, an order from the court or the prospect of costs sanctions may just be the nudge that one or both parties need to get them through the door of a mediator who may just crack it.
The family law world is beginning to encourage this, and we hope that over the next 10 years it will become common practice. On that note, and a visible sign of progress, we have recently been impressed by Karen Barham at Moore Barlow’s new initiative, The Surrey Initiative (https://www.moorebarlow.com/the-surrey-initiative/) which we hope will pave the way for a judicial sea change in how ADR is promoted and pushed through the court.
It is an unavoidable truth that COVID19 has been a cause of increased tension between separated parents. The rules and restrictions that have been imposed by the government are undoubtedly open to interpretation in many cases and every individual has a different view about how these rules should be implemented. Whilst the government made clear that children of separated parents were permitted to move between two households, they also gave ultimate discretion to the parents of those children when making such decisions.
This has given many the impression that they may simply stop contact if they feel it is “unsafe” or that the other parent is not properly complying with COVID19 rules. Court orders have become a blunt instrument in these circumstances as a parent is able to “justify” breaching the order due to COVID19 and if the other parent wishes to bring the matter back to court to have it determined, they could be waiting months for even a first hearing.
Going forwards, private children matters will need to be dealt with differently and more effectively to ensure the welfare of the children concerned. Court orders cannot cover every eventuality and certainly cannot anticipate a global pandemic and a more holistic approach will be needed to support separated parents in addressing these problems themselves.
1 Crown Office Row predict a greater use of Child Contact Interventions (CCI) by CAFCASS which are “designed to help adults and children establish safe and beneficial contact when this is difficult to do on their own. They aim to encourage parents to listen to their child’s views and to approach contact in ways that meet the child’s needs. There are several types of interventions available, these include preparation of a child for contact, work with parents to prepare for contact, intervention and observation of contact, sustaining contact and indirect contact. Trained staff work with each family and the Cafcass Family Court Advisor for a short-term period with a focus of supporting parents to manage contact in a safe way creating a positive experience for the children involved.”
Our concern: with what resources? Without a significant increase in public funding, CAFCASS are simply not going to have the resources to offer this on a widespread basis and whilst we would love to say that we predict a more effective management of private law children matters over the next 10 years, our grave concern is that this area is going to get worse before it gets better.
One thing that we all unanimously agree will not be left behind as a fond memory of the pandemic is remote working. Practitioners across the country have proven over the last almost 12 months that it is eminently possible to work from home, to work paperless and to work flexibly. Many have juggled childcare responsibilities and home schooling with their “day job” and almost every meeting with clients, barristers or other professionals has taken place virtually.
Part 1 of this two-part series mentioned one of our founding partners, Alan Larkin, and the great strides he has made in the use of technology in family law. Well, we couldn’t conclude this blog without a little gem from our other founding partner, the all-knowing, font of wisdom, ultimate calming influence that is Mr Robert Williams. Robert recently shared with us an updating definition of the word “office”:
Over the next 10 years, we predict that those entering the profession and those continuing within it will expect a degree of flexibility in their working hours and will operate from home (at least for part of the week) as standard. Views on this differ across the board – we at the Family Law Partners Horsham office cannot wait to get back into the office for those coffee conversations and post-phone call debriefs that come so naturally when sharing a space with others – but we acknowledge that this view is not universal, and many people will prefer to continue working from home long after Boris says we can all get back to our offices. For firms, this is going to mean adopting a flexible, individual approach to each employee and recognising that everyone works differently and has different preferences as to how they work and where.
Our hope is that as well as law firms maintaining a good level of remote and paperless working, the courts will not regress to more traditional/paper-based modes. Sadly, we are already seeing some regression (Bury St Edmunds will no longer accept applications for divorce by email) but there is hope amongst our panel of experts that this will not be widespread.
Nick Anderson takes the view that: “Remote hearings started as a response to the COVID pandemic but it is easy to see that most short hearings will be conducted remotely for the foreseeable future. It may be that case management hearings will never return to court in the majority of cases.”
The advantage of this in many cases will be increased efficiency and Teertha Gupta QC hopes that: “the online systems, that were in their infancy a couple of years ago, the use of Wi-Fi in courts and from home and technology in general, will surely free up the system to deal with cases more efficiently over the next decade.”
There are downsides to this however and those at 1 Crown Office Row rightly caution that: “the most obvious detriment, it seems to me, is the loss of human touch. The family court, at times, deals with some of the most life-changing events in a person’s life. Some decisions will have profound and life-long consequences. It seems inhuman to leave a party to absorb such a decision alone without being able to spend time explaining the decision and ‘being there’ for that person, if even if only very briefly. To that end, it seems that, once possible, cases such as removal hearings and final hearings will return to court as soon as it is safe to do so.”
10. Escape to the country
A prediction we have welcomed with open arms (being based in Horsham, West Sussex) is Andrzej Bojarski’s suggestion that there will be a reduced dominance of London as the English centre for high-level family litigation as firms and chambers outside London become more specialist and the Family Court devolves work to the regions.
It is a fact that more and more clients are acknowledging that they can secure “London quality” lawyers outside of the big city and can expect the same level of service at lower charge-out rates. This becomes all the more relevant in the new world of remote working where geographical location has zero relevance or connection to the ability to offer exemplary client service and ability.
It is our prediction that focus will move away from London all the more as the existence of a centrally located, prestigiously addressed, head office becomes irrelevant and the mass exodus of individuals and families living in London continues.
QEB – Duncan Brooks, Andrew Campbell, Thomas Haggie – http://www.qeb.co.uk/
1 Crown Office Row – Eleanor Battie – https://www.1cor.com/brighton
1KBW – Nick Anderson – https://www.1kbw.co.uk/
36 Family – Andrzej Bojarski, Rhys Taylor – https://36group.co.uk/family
Quoted: Karen Barham at Moore Barlow