Simple Simon and the Lord Chancellor’s New Clothes


quantumvaleat:

As usual, you comment with a clarity and intelligence that is much needed in this vile snake-pit of a political situation. Thank you

Originally posted on ExInjuria:

Earlier in the week Glen Poole very kindly gave me space on his Inside-MAN site to give my views on the commencement of Section 11 of the Children and Families Act 2014.  For those who aren’t aware (and there seem to be many of those) this section inserts into Section 1 of the Children Act 1989 what for brevity we can call the presumption of parental involvement.  Judges are now advised that a parent’s “involvement” is likely to further their child’s welfare.

Unfortunately Glen had allowed me only 500 words (I went slightly over) so I had intended in my own blog to expand at rather greater length on what I had then written.  Fortuitously the Government has just announced further developments, so I shall include those as well in this post.

Before we start, please note that the Children Act only covers the English and Welsh jurisdiction, contrary to…

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More support for separating couples and parents – it’s only window-dressing


The initiatives  announced yesterday by Simon Hughes and the MoJ have already been met with an outcry among some of the top legal bloggers, the silence from the father’s groups is however deafening. Fathers4Justice are too busy looking inward at each other to have noticed what is happening in the world outside their window – absolutely no comment whatsoever on Clause 11, or on the new reforms announced yesterday.  None.  Too busy asking for donations I guess….FnF have posted a few links on social media sites, but again no comment from them. I admire the work they do at local branch level, but as a national organisation, the need to be outspoken is greater than ever.  The only voices’ I’ve heard recently are the legal profession and legal bloggers, Michael Robinson from the Custody Minefield, the author Nick Langford and Nick Woodall. Where is everyone else??

The helpline pilot that will run for just six months from November will be run by CAFCASS, who routinely let down children, mothers and fathers, who are not trusted by parents, who are not independent and have an agenda to work from (and it’s not a child-focused agenda) – the Government seriously think parents will trust this helpline, that this helpline will help parents from start to conclusion? What will happen to parents whose situation is still on-going when the pilot ends? Where they turn to for the support and advice they so desperately need?  These are real people with complicated situations that centre around children – not lab rats with which to experiment upon.

While the expansion of in-house support for Litigants while at Court has potential, the fact it will most likely be staffed by local advice centres (read CAB) who are already facing funding issues and over-stretched resources as it is – and most volunteers are not legally qualified or well-versed in family law (there are a few, such as the volunteers on the Wikivorce advice line); or students is deeply concerning. Marilyn Stowe says in her blog :

What skills or experience do young graduates have in law, negotiation, practice and procedure?

Students are in no position to give legal advice. This is especially true in divorce cases. What kind of reassurance will they be able to offer sometimes much more mature adults who are going through one of the most traumatic periods in their life? Are they really equipped to deal with the kinds of emotional outbursts that are common in these kinds of cases?

To expect students to replace proper legal advice and support is wrong – the Government now realise that they fucked up in an unimaginable way by the way Legal Aid has been withdrawn, and the effects that this has had on those caught up in the travesty that is now the Family Justice system. They are now busily trying to rectify this almighty fuck-up by throwing a few  “initiatives” into the wind when really all they are doing is pissing in the snow (never eat yellow snow).

While the Norgrove Report was not a success, and fell short of what was expected; most of the recommendations have either been ignored or watered down into such a diluted state that the original recommendations are almost unrecognisable – and yet again, these new proposed reforms ignore the Norgrove Report completely.

One recommendation in the Report was to have Hubs, to provide an actual meeting place for parents to get the support, information and advice they would require while going through separation and post-separation; what we got instead was the completely useless and unused Sorting Out Separation App with it’s clunky and unfriendly interfacing – not to mention the often inappropriate signposting suggestions that the App would make.

Imagine having physical Hubs in every town – proper, warm, welcoming, safe meeting places where parents can go, seek help, support, and information, advice on a whole range of issues that can and do arise during and after separation. Proper face to face help from a wide range of local professionals who can support them through-out and ensure that no-one who approaches them falls through the gaps. This is achievable, with co-ordination,  a little bit of effort and not too much funding.    People need to be fully informed, be armed with the greatest peaceful ammunition that there is – facts and correct information, so that they can make intelligent, informed decisions, see through the bullshit from the other side  – pimping up the Sorting Out Separation App and the Gov.UK sites simply isn’t enough.

Hughes is very critical of those who use the Courts for dispute-solving – “ Too many people end up fighting expensive and confrontational court battles and I am determined that more people resolve their problems outside of the courts” Does he think that people just don’t bother with alternative dispute resolutions? Does he not realise that for many, Court is the only option after all else has failed? How on earth does one person come to an agreement with a former spouse or partner who simply will not engage with them? For some, mediation is not suitable due to domestic abuse or when one party has whisked the children off to the other end of the country and refuses to reveal their whereabouts. Mediation has its merits, but it is not the Golden Goose that many seem to think it is.  If Mr Hughes thinks that people don’t try hard enough to resolve their issues outside of court, then I invite him to spend time on the Wikivorce forum, and time answering calls on the helpline – perhaps then he would realise what is actually happening, what people are actually experiencing and the obstacles they face on a daily basis.

Lost in the midst of all this, of these initiatives, proposals,  of furious back-peddling; are the children and families caught up in this mess of a justice system. None of this means better outcomes for children, less waiting time for cases to be heard – to be resolved – their voices being listened to, to me it seems as though it is anything but in the best interests of the children.

 

 

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180 Divorces to be Set Aside?


Rapisarda v Colladon 2014

 

This is a very interesting and unusual case. It involves the Queen’s Proctor making an application to dismiss 180 divorce petitions,  Decree Nisis and Absolutes.  The opening paragraph in this case from Lord Justice Mumby reads:

  1. I have been hearing applications by the Queen’s Proctor to dismiss a large number of divorce petitions and also, in many of the cases, to set aside decrees of divorce (some nisi, some absolute) obtained in consequence of what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale. At the outset of the final hearing on 9 April 2014 – the hearing was in open court – an important question arose in relation to the possible impact on the reporting of the proceedings of the Judicial Proceedings (Regulation of Reports) Act 1926 (the 1926 Act). Needing time to consider the matter I expressed no view at the time save to remind the journalists who were present in court of the existence of the 1926 Act and to draw to their attention some words of Sir Stephen Brown P in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, 62.

The judgement has been analysed in quite some detail by Suesspicious Minds “The Pages of a Most Fragrant French Novel”  – but with no explanation of WHY the Queen’s Proctor has made this application – mainly because the Judgement doesn’t specifiy the WHY.

I will come to the WHY in a bit, but first, wanted to explain a bit more about the role of the Queen’s Proctor. Allen Hortsman in Victorian Divorce notes  the  Queen’s Proctor “was a fearsome shadow looking over all proceedings“. Suesspicious Minds sums up the role of the Queen’s Proctor as

he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973″

The delay between a Decree Nisi (or Conditional Order) and a Decree Absolute gives the Queen’s Procter an ideal opportunity to intervene in proceedings – such as is the case with these 180 divorces – however, nowadays, such opportunities for intervention are somewhat limited. Gone are the days when divorces where based on the concept of matrimonial offence and where divorce was prohibited on the grounds of collusion  – ie the parties had created a matrimonial offence – the scenario where the man allows himself to be “found” by a private investigator in a hotel  room with another woman, thus meaning the wife could petition on the grounds of adultery.  The Queen’s Proctor would investigate such divorce applications if suspicions were raised that collusion was afoot.  If you want to read more about how these investigations were conducted then read Holy Deadlock written by  A.P. Herbert.

On the subject of collusion, one unnamed Justice in 1890 expressed the need for total honesty in divorce cases:

“Now what is this special provision with regard to collusion? I think its object is to compel the parties to come into the Court of Divorce with clean hands. It is to oblige them to bring all material and pertinent facts to the notice of the  Court.,m to prevent their blinding the eyes of the Court in any respect; to oblige them so to act as to enable the Court to do justice between the parties”

 

It is the issue of collusion that is evident in the 180 divorce cases in which the Queen’s Proctor has intervened and requested they be set aside. Here is the WHY ;

They all involve Italian couples – in 179 of the petitions submitted, the postal address of a post box on the High Street of Maidenhead was used to establish residence in the UK.  In the 180th case, the petitioner claimed to be living at an address in Epsom, Surrey  – all the spouses lived in Italy, none of them were actually resident in England, and therefore did not meet the residence criteria.  It is illegal to use a false address or to falsely claim residence for the purposes of a divorce.  The Italian couples were alledegdly promised a “quick” divorce in England – the divorces were allegedly organised divorce agency charging up to €4,000 for a quick divorce.  The courts in England/Wales have no jurisdiction to consider divorce applications where both parties do not meet the residence criteria and live outside the jurisdiction. This is indeed an attempt to pervert the course of justice on an almost industrial scale.

When the application was first made, last year, and the initial hearing was held in October 2013, there were representatives from both Thames Valley Police and the Italian Government to observe proceedings.

Divorce in Italy is complex – it was only  introduced in Italy in 1970 and Italian couples face a mandatory three-year period of legal judicial separation before being able to apply for divorce. In most cases, the entire divorce process could take up to 5 years as a result of the complexity of Italian bureaucracy and renowned slowness of the Italian judicial system.  Gabriele Giambrone, Senior Partner of Giambrone Law has commented:

“As a result of Italian archaic legislation on the dissolution of matrimonial affairs over the recent years more and more Italians have recently embarked in forum shopping around EU member states, mainly England and Rumania, by circumventing these Italian mandatory rules and using European Union legislation which recognizes divorces granted in any EU member state. The consequences for the individuals implicated in this fraudulent scheme may be far reaching: – adds Giambrone- Divorces obtained illegally or fraudulently overseas will not be recognised in Italy and, if any of the 180 couples has remarried in Italy in the meantime, they are at risk of being deemed bigamist in law, which is considered to be an additional criminal offence so they are also at risk of criminal prosecution in Italy”

I’m astonished that there has been no press coverage of this at all – after all the column inches devoted to the “sham marriage” scandals of recent years, I would have thought that “sham divorces” would have at least warranted some sort of coverage – if only to show that the Queen’s Proctor is doing his job properly, and to send out a clear message to others that England/Wales is not the place to lodge a fraudulent divorce petition with a bogus address.

 

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Ending the Disadvantage of Unmarried Fathers?


There has been some interesting news filtering out from Scotland over the past few days. On Tuesday this week (6th May 2014),  The Public Petitions Committee heard evidence on a petition calling for equal rights for unmarried fathers. The petition has been raised by Ron Park, an unmarried father of a young son  whom he does not see because the child’s mother does not allow it. “There is no protection issue, no order to remove me, she simply felt like she wanted rid of me,” writes Mr Park on his blog.

I have previously blogged about the issues faced by unmarried fathers who do not have Parental Rights and Responsibilities – The continuing disadvantage of unmarried fathers – without PRR; which an unmarried father can only acquire by virtue of the relationship with the mother, in that the mother has to agree to have the father’s name on the birth certificate – or via a lengthy, time-consuming and expensive legal process.  The case of Principal Reporter v K [2010] highlights this lengthy procedure. 

Parental Rights and Responsibilities afford parents not just responsibilities in the upbringing of their child, but certain rights, most notably the right to have the child live with them, or the right to maintain contact with the child. (Children Act (Scotland) 1995 (s)2). Those that gain automatic PRR are:

  • the child’s mother;
  • the child’s father where he is married to the mother at the time of the child’s conception or subsequently;
  • the child’s father where he is registered as the father of a child on or after 4 May 2006.

But not unmarried fathers where the mother refuses to consent to the father’s name being on the child’s birth certificate. 

 

I would like to clear one point up, during the Committee meeting, David Stewart MSP and chair of the Public Petitions Committee said ” My understanding, just looking through the brief, is that in England and Wales, there is a rationale in legislation of a presumption of shared parenting”.  Well, no there isn’t.  Section 11 of the Children and Families Act 2014 amends Section 1 of the Children Act 1989 by introducing a clause requiring the court to presume that involvement of a parent in the life of a child will further that child’s welfare. The law makes the presumption “rebuttable” which means that it does not apply if a parent cannot be involved without putting the child at risk of suffering harm, or if evidence is presented to the court which suggests the parent’s involvement would put the child at risk of suffering harm.  The term “involvement” is not defined, but a late amendment to Section 11 specifies that it can be of any kind, either direct or indirect, but does not indicate any particular division of a child’s time – so while involvement could mean shared parenting, it could also mean that sending a child a birthday card once a year is involvement – or simply paying child support is involvement, with no actual contact, either direct or indirect. At the time of writing, there is no commencement order for section 11, the word on the wire is that there “may” be a commencement order in the autumn this year – possibly.  In any case – involvement is not shared parenting – it would be like to trying to compare a scabby donkey with a mythical unicorn….

However, the very fact that MSPs at the meeting mentioned shared parenting in positive terms is very encouraging – I hope the politicians south of the border are taking note.  

So, why does there need to be a change in the current law regarding unmarried fathers gaining Parental Rights and Responsibilities?  Rebecca McQuillan, writing in the Herald on Wednesday this week says:

The law is out of kilter with the times. From next April, couples will be able to share parental leave. No longer will there be an assumption that women care and men work. And yet when it comes to allocating parental rights, the system has an in-built bias where men are regarded more sceptically than women, even with suspicion. There are some drastically unsuitable mothers out there, but the law generally views women as fit parents until proven otherwise, while unmarried men not lucky enough to be named on the birth certificate must shake off the taint of being inherently irresponsible.  The gravest failure of the current system is in depriving children of relationships with their fathers. The importance of strong family relationships in producing secure, confident, optimistic children has become a guiding light in government policy on everything from improving health and boosting employment to reducing offending. A Ben Nevis of PhD theses has been written about the value of strong male role models, especially for boys. Children benefit from having a loving dad as well as a loving mum – who knew?

While  unmarried fathers  are disadvantaged and discriminated against if their name is not on their child’s birth certificate,  the child  is denied official and formal acknowledgement of their paternal bloodline. In his written evidence to the committee, Mr Parks said:

“It’s obvious the laws in place are to protect children, and this core value should not change, but an amendment should be added to ensure that men have a right to prove parentage of a child definitively so as they can then be involved in their child’s life.”

 

Without Parental Rights and Responsibilities, a  father can not be considered to be a “relevant person” with regard to court hearings involving their child/ren (mothers automatically have PRR, and therefore are automatically classed as a relevant person). It is astounding that a father without PRR has to face a lengthy, costly and wholly unnecessary legal procedure to gain status as a “relevant person” – even if that father has in place a contact order or other (s)11 order, or where the father has a longstanding and close relationship with his child. The onus is on the father to prove that he has an active involvement with his child/ren.  As things stand, unmarried fathers without PRR will continue to have to apply for “relevant person” status – however, should there be a change in legislation, unmarried fathers would not need to endure this drawn-out legal procedure; and would  be legally recognised as parents ,  and therefore end the current discrimination against unmarried fathers. 

Although John Lammond MSP stated at the start of the meeting (after hearing verbal evidence from Mr Park’s mother on his behalf)  that there  are “no plans to amend law currently”,  the very fact that this thorny issue is being discussed by Scottish politicians, and using phrases such as “a very brave petition” and “important” is heartening indeed.  Committee convener David Stewart said it would “pursue this with as much activity as it possibly can”, and  the committee agreed to seek further information from the Scottish government, the Law Society of Scotland, the Family Law Association, Families Need Fathers, Scottish Women’s Aid and the UK minister. 

While we wait for political furtherance on Mr Park’s petition – all we can do in the meantime is to continue advocating to the wider world the benefits of shared parenting to children, help and support  parents who are trying to  work together for their children and putting their differences to one side and counter the voices that seek to remove fathers from their children’s lives.

Below you will find a link to the recorded video of the Committee meeting which discusses the petition:

Call for Equal Rights For Unmarried Fathers – Committee Meeting 

If you would like to read more about Ron Park’s fight for equality, you can access his blog here – Fighting For Alex 

With thanks to Ron Park – your determination, and your love for your son are a shining beacon of hope.

 

 

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Oh for Lord’s sake….


The Children and Families Bill was debated again this week by the Grand Committee in the House of Lords; a startling number of amendments were proposed; you can read the Hansard transcribe of that debate here.

It is one amendment – and in particular one comment by the Earl of Listowel that I am picking up on. Amendment 242 would enable the introduction of a pilot scheme,

“to trial the registration of births within children’s centres”.

When he spoke about his proposed amendment, the Earl of Listowel said:” there is a danger of stigma in visiting a children’s centre; people may feel that they can go only if there is something wrong with them. This, however, is a universal service. Everyone would go there to register their child, so there would be no stigma attached to it. Practitioners talk about this as an important step forward in terms of involving fathers. Fathers will go along when the child is going to have the birth registered. I am not quite sure of the technical details as to why it is so important for fathers to be involved in the registration process—perhaps one of your Lordships can tell me in a minute—but there is a strong feeling that more fathers will be involved early in their child’s life this way.

If unmarried fathers are not present at the registration of the birth of their children, then they will not automatically acquire Parental Rights – acquisition of PR would then be dependant on either a PR agreement with the mother, or via a court order. Last year, 47.5% of children were born to unmarried parents; if the trend continues then by 2016 the majority of children will be born to unmarried parents.

It is imperative that fathers are not prevented or discouraged from being present at the birth registration – there are already far too many barriers for fathers in this country, and any new legislation should be inclusive of fathers, rather than attempting to further marginalise them.  While the proposal of a trial of parents being able to register their child’s birth at a children’s centre and at the same time make parents aware of what services are available to them should they be required seems to hold some water, it would surely help a great deal if the Lord proposing this amendment understood the implications of why unmarried fathers need to be present at the registration. And no, he didn’t get a reply to his question to the other Lords as to why it is important for fathers to be present.

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US Supreme Court Bolsters Gay Marriage With Two Major Rulings


(from the New York Times)

 In a pair of major victories for the gay rights movement, the Supreme Court on Wednesday ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there.

People celebrated outside the Supreme Court on Wednesday after it struck down the Defense of Marriage Act.

The rulings leave in place laws banning same-sex marriage around the nation, and the court declined to say whether there was a constitutional right to such unions. But in clearing the way for same-sex marriage in California, the nation’s most populous state, the court effectively increased to 13 the number of states that allow it.

The decisions will only intensify the fast-moving debate over same-sex marriage, and the clash in the Supreme Court reflected the one around the nation. In the hushed courtroom Wednesday morning, Justice Anthony M. Kennedy announced the majority opinion striking down the federal law in a stately tone that indicated he was delivering a civil rights landmark. After he finished, he sat stonily, looking straight ahead, while Justice Antonin Scalia unleashed a cutting dissent.

The vote in the case striking down the federal Defense of Marriage Act was 5 to 4, and Justice Kennedy was joined by the four members of the court’s liberal wing. The ruling will immediately extend many benefits to couples married in the states that allow such unions, and it will allow the Obama administration to broaden other benefits through executive actions.

The case concerning California’s ban on same-sex marriage, enacted in a ballot initiative known as Proposition 8, was decided on technical grounds, with the majority saying that it was not properly before the court. Because officials in California had declined to appeal a trial court’s decision against them, and because the proponents of the ban were not entitled to step into the state’s shoes to appeal the decision, the court said, it was powerless to issue a decision. That left in place a trial court victory for two same-sex couples who had sought to marry.

The vote in the California case was also 5 to 4, but with a different and very unusual alignment of justices. Chief Justice John G. Roberts Jr. wrote the majority opinion, and he was joined by Justice Scalia and Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan. The four dissenters — Justice Kennedy and Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor — said they would have decided whether Proposition 8 was constitutional. But they did not say how they would have voted.

The case on the federal law was the more important one from a legal perspective, setting the terms for challenges to state bans on same-sex marriage. Justice Kennedy’s reasoning, as Justice Scalia noted at length in dissent, could just as easily have applied to state laws as to the federal one.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

He said the law was motivated by a desire to harm gay and lesbian couples and their families, demeaning the “moral and sexual choices” of such couples and humiliating “tens of thousands of children now being raised by same-sex couples.”

The constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process. Justice Kennedy said the law’s basic flaw was in its “deprivation of the  liberty of the person protected by the Fifth Amendment.”

He added that the ruling applied only to marriages from states that allowed gay and lesbian couples to wed.

Dissenting from the bench, Justice Scalia said that that declaration took “real cheek.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” Justice Scalia said, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

 

  • Exactly 10 years ago, Justice Scalia issued a similar dissent in Lawrence v. Texas, which struck down laws making gay sex a crime. He predicted that the ruling would lead to the legal recognition of same-sex marriage, and he turned out to be right.

The court’s four more conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — issued three dissents between them in the case on the federal law. They differed in some of their rationales and predictions, but all agreed that the law, which passed with bipartisan support and which President Bill Clinton signed, was constitutional.

Chief Justice Roberts said that he “would not tar the political branches with the brush of bigotry,” and that “interests in uniformity and stability amply justified Congress’s decision” in 1996, which, “at that point, had been adopted by every state in our nation, and every nation in the world.”

Justice Scalia wrote that the majority had simplified a complex question that should be decided democratically and not by judges.

“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us,” he wrote. “The truth is more complicated.”

The decision will raise a series of major questions for the Obama administration about how to overhaul federal programs involving marriage. Justice Scalia noted some of the difficult problems created by the decision in the case,United States v. Windsor, No. 12-307. “Imagine a pair of women who marry in Albany and then move to Alabama,” he wrote. May they file a joint federal income tax return? Does the answer turn on where they were married or where they live?

The case before the justices concerned two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The federal law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000, which a spouse in an opposite-sex marriage would not have had to pay. Ms. Windsor sued, and last year the United States Court of Appeals for the Second Circuit, in New York, struck down the federal law.

The Obama administration continued to enforce the federal law, but it urged the justices to strike it down as unconstitutional, prompting House Republicans to step in to defend it. The justices differed on whether the case’s odd procedural posture deprived the court of jurisdiction, much as the machinations in the Proposition 8 case had.

Justice Kennedy said that the federal government retained a stake in the case, and that the lawyers for House Republicans had made “a sharp adversarial presentation of the issues.” Because the “rights and privileges of hundreds of thousands of persons” were at stake, Justice Kennedy wrote, it was urgent that the court act.

In the California case, Chief Justice Roberts said that the failure of state officials to appeal the trial court decision against them was the end of the matter. Proponents of Proposition 8 had suffered only a “generalized grievance” when the ballot initiative they had sponsored was struck down, the chief justice wrote, and they were not entitled to represent the state’s interests on appeal. The ruling in the case, Hollingsworth v. Perry, No. 12-144, erased the appeals court’s decision striking down Proposition 8.

As a formal matter, the decision sent the case back to the appeals court, the United States Court of Appeals for the Ninth Circuit, in San Francisco, “with instructions to dismiss the appeal for lack of jurisdiction.” That means the trial court’s decision stands.

Lawyers for the two sides had different interpretations of the legal consequences of the Supreme Court’s ruling. Supporters of Proposition 8 said it remained the law in California because the trial court’s decision applied only to the two couples who had challenged the law. The lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, said the trial court decision was binding in all of California.

As a practical matter, Gov. Jerry Brown, a Democrat, instructed officials to start issuing marriage licenses to same-sex couples as soon as the Ninth Circuit acts.

If California becomes the 13th state to allow same-sex marriage, about 30 percent of Americans will live in jurisdictions where it is legal. Until last year, when four states voted in favor of same-sex marriage at the ballot box, it had failed — or bans on it had succeeded — every time it had appeared on a statewide initiative.

Guide to the Supreme Court Decision on the Defense of Marriage Act

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Family Justice Knowledge Hub – Bulletin 3


Bulletin 3 – June 2013

 

 

Welcome to the third bulletin from the Family Justice Knowledge Hub
 

What is the aim of Knowledge Hub?

 

A number of recommendations in the Family Justice Review related to the need to better disseminate relevant research and good practice throughout the Family Justice System. The Government Response to the review accepted these recommendations and committed to work with the Family Justice Board to facilitate the provision of social research evidence to family justice practitioners and wider stakeholders.

 

Ministry of Justice (MoJ) Analytical Services are supporting this through developing the Family Justice Knowledge Hub. One aspect of this is to collate and disseminate the latest research news, whether conducted on behalf of government departments, local authorities, research bodies or other organisations.  Recipients of this bulletin are welcome to forward to others to help facilitate the dissemination of knowledge across the Family Justice System.

 

What can you expect from the Knowledge Hub Research Bulletin?

 

The Knowledge Hub Research Bulletin aims to provide a summary of the findings of recent research relevant to family justice, and an update on the progress of noteworthy ongoing and forthcoming projects. Where available links to fuller information are provided.

 

This third bulletin includes recently published public law studies and ongoing studies both in private and public law in England and Wales.

 

How can you get in touch?

 

We would appreciate your feedback on this bulletin. Additionally, if you would like to suggest any research for inclusion in future bulletins or to add a recipient on to the mailing list please get in touch at knowledgehub@justice.gsi.gov.uk

 

NB. While MoJ Analytical Services will apply discretion in assessing the relevance of material included, inclusion in the Knowledge Hub Research Bulletin does not mean the research is endorsed by the MoJ. The information included is not intended as an official view of the MoJ or a reflection of MoJ policy. Note that where research included here has been through an independent peer review process this is indicated in the Bulletin.

 

 

 

 

 

Contents

 

Page
 

PUBLIC FAMILY LAW

Pre-proceedings

The contribution of experts

Adoption

 

Update on ongoing or forthcoming research projects

Pre-proceedings

The contribution of experts

Courts

 

 

3

5

7

 

 

10

11

12

 

PRIVATE FAMILY LAW

 

Update on ongoing or forthcoming research projects

Litigants in person

Enforcement

Divorce and finance

ADR

 

 

 

 

 

13

13

13

14

 

News Update

 

Acknowledgements

 

 

15

 

 

16

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FAMILY LAW

Pre-proceedings

 

 

Masson, J. and Dickens, J., with Bader, K. and Young, J. (2013) The pre-proceedings process for families on the edge of care proceedings. University of Bristol and University of East Anglia

Funder(s):  Economic and Social Research Council (ESRC)

Report:  ESRC
Peer Review Status: peer-reviewed

Related Journal Articles: Dickens, J., Masson, J., Young, J. and Bader, K. (2013) ‘The paradox of parental participation and legal representation in ‘edge of care’ meetings’, Child and Family Social Work, early view.

 

The study examined the operation and impact of the pre-proceeding process introduced in 2008 as part of the Public Law Outline (PLO) reforms to care proceedings. The pre-proceedings process requires local authorities to write a ‘letter before proceedings’ to parents explaining their concerns and invite them to a ‘pre-proceedings meeting’ to discuss how proceedings could be avoided. The pre-proceedings process aimed to divert cases of abuse and neglect from the courts, to ensure local authorities were better prepared and to reduce the time courts took to decide cases.

 

The study included:

  • Examination of 207 local authority case and court proceedings files;
  • 16 interviews with social work managers, 19 with social workers, 16 with local authority lawyers, 19 with lawyers who represent parents;
  • 36 observations of pre-proceedings meetings for 33 cases; 24 interviews with parents who attended them; and follow up interviews with social workers in these 33 cases.
  • A focus group with judges.

 

The study was conducted in 6 local authorities in England and Wales. It aimed to explore:

  • The relationship between the use and timing of pre-proceedings process and application for care proceedings;
  • The characteristics of cases which result in care proceedings;
  • How pre-proceedings meetings are arranged and whether they provide an opportunity for parents to engage in constructive negotiations about their child’s protection;
  • How different parties perceive and perform their role in pre-proceedings meetings;
  • Parents’ views of pre-proceedings meetings;
  • The success of pre-proceedings meetings in identifying and achieving alternatives to care proceedings or uncontested proceedings.

Key findings include:

  • Use of the pre-proceedings process varies between local authorities. The local authorities in the study use it for almost all cases where there was sufficient time to do so.  The pre-proceedings process had been used in half the cases where care proceedings were eventually started;
  • A third of pre-proceedings cases related to unborn babies;
  • The pre-proceedings process succeeded in diverting cases that had met the threshold for court: a quarter of cases did not enter care proceedings either thanks to kin or foster care or improvements in care at home;
  • Courts did not seem to take particular account of this work at this time so  care proceedings were not shorter where the pre-proceedings process had been used; ;
  • The pre-proceedings process delayed decisions for children who entered care proceedings;
  • Both social workers and their managers viewed the pre-proceedings process favourably, especially as a fair way of working with parents;
  • Parents felt supported by having their lawyer at pre-proceedings meetings and for some this facilitated greater co-operation with children’s services.

 

http://www.bristol.ac.uk/law/research/researchpublications/2013/partnershipbylaw.pdf

 

http://www.bris.ac.uk/law/research/researchpublications/2013/summary.pdf

 

nvolved pre-birth assessments. care or improvements in care at home;

gs;  was sufficient time to do so.

ncontested proceedings

Jelicic, H., Gibb, J., La Valle, I and Payne, L. (2013) The Voice of the Child in the Child Protection Conferences. National Children’s Bureau.

Funder(s):   Involved by Right – EU Daphne grant-funded programme

Report:  National Children’s Bureau (NCB)
Peer Review Status: peer-reviewed

Related Journal Articles: in preparation

 

In order to improve participation and advocacy in child protection conferences and achieve better outcomes for children at risk, the Royal Borough of Kensington and Chelsea (RBKC) introduced, on a pilot basis, an advocacy service for child protection conferences. The advocacy service provide support to children who were subject to child protection plans to ensure that their views and wishes are listened to when making decisions about their future during a child protection conference. The NCB Research Centre carried out an evaluation of the advocacy model to explore benefits and effectiveness of the service. The aims were to explore whether children, with the support from the advocate, were able to:

  • Attend the child protection conference;
  • Express their views at the conference;
  • Contribute to their child protection plan;
  • Understand the purpose of the conference and the plan.

 

The evaluation consisted of:

  • A review of anonymised child protection records for 26 family cases involving 38 children who received advocacy for at least one child protection conference and three children who did not receive advocacy but attended their child protection conference;
  • In-depth exploration with a sub-sample of four cases consisting of 20 interviews with children, their parent(s), the advocate, the social worker and the chair of the most recent conference; 7 more interviews with professionals who dealt with families whose cases were reviewed for the study but did not take part in the in-depth explorations;
  • Analysis of data gathered by RBKC from an anonymous feedback form completed by parents and professionals attending conferences.

 

Key findings included:

 

  • Parents were often found to be reluctant at first when asked to give permission for their children to use the service. Children were generally less reluctant, but for some it took time to be more open with the advocate and share more information;
  • Advocates successfully worked with social workers to fully understand any background information on the child and its family (including safeguarding issues) before meeting with the child; in this way, children were usually well prepared for the child protection conference;
  • Children felt supported and appreciated the advocate’s flexibility in helping them organise what they wanted to say and how;
  • The advocate enabled children’s views to be represented when formulating child protection plans and children recognised this;
  • Children and advocates’ contributions facilitated dialogue and helped professionals and parents to focus on the needs of the child.

 

http://www.ncb.org.uk/media/898464/involved_by_right_research_report_final.pdf

 

 

 

 

PUBLIC FAMILY LAW

The contribution of experts

 

 

Dr Brophy, J., Owen, C., Sidaway, J and Dr Johal, J.J. (2012) The Contribution of Experts in Care Proceedings: Evaluation of the Work of Independent Social Work Assessments. Findings from Stage 1. Confederation of Independent Social Work Agencies (CISWA) UK and University of Oxford

Funder(s): CISWA-UK

Report:  CISWA-UK Report
Peer Review Status: not known

Related Journal Articles: none

 

ISWs are asked to provide ad-hoc assessments to local authorities or courts across a wide range of specialities including child protection, fostering or adoption.  This may be when another opinion is needed or because a specialist assessment is required. Concerns about the use of independent social work (ISW) assessments emanated from submissions to the Family Justice Review (FJR). Concerns raised included that ISW caused delay, duplicated existing local authority assessments, and undermined confidence in social work assessments.  It was also said such reports result from human rights arguments by parents – to which courts too readily accede.

 

This two part study addresses a lack of robust empirical data in this field.  Stage one was based on a random sample of cases drawn from the records of three independent agencies providing ISW assessments for courts. It utilises qualitative and quantitative methods to examine letters of instruction and reports in England and Wales; reports concerned 121 children in 65 cases; the sample consisted of 82 reports and associated letters of instruction.

 

Stage I – sample profile

  • Children and parents in the sample cases demonstrated multiple problems.  Most children experienced multiple forms of ill-treatment, were aged six years or younger, were subject to an interim care order and were known to children’s services prior to proceedings;
  • Most parents were subject to multiple concerns/allegations contributing to failures of parenting.

Instructions to ISWs

  • Findings do not support a view that parents are solely responsible for the use of ISW assessments – or that applications are based solely on human rights applications;
  • All letters of instruction (LOIs) instructed ISWs as an expert witness for the court; overall, the median number of tasks or questions set was 13; a small number of LOI did not comply with the Practice Direction: questions being repetitive, lengthy, and in some instances, lacking a clear structure.

 

The context in which ISWs are instructed

  • Most cases (93%) indicated the local authority had filed at least one assessment relating to the care of a child(ren) in the case: 71% contained a core assessment;
  • The reasons why an ISW was instructed to assess a parent/others – where there was evidence of a previous local authority assessment – was because a previous assessment had not included the parent to be covered in the proposed ISW assessment, or a parent with a new partner/proposed carer;
    • In 19 cases an ISW was instructed within twelve months of a local authority core assessment.  These cases demonstrated some key features: a high level of conflict between the local authority social worker and a parent(s), changed circumstances, and/or information missing in the LA assessment.

Contesting existing LA assessments and human rights arguments

  • In 35% of cases a previous local authority assessment was contested by a parent(s) but in most of these cases, assessments were contested on grounds of content; in just 4 cases parents contested a local authority assessment on grounds of a lack of independence or human rights issues.

 

The Assessors: skills, experience and role

  • ISWs in this sample had substantial experience in child protection work; the median being 24 years;
  • The study demonstrates that while the core professional discipline of the LA social worker and the ISW is the same, as expert witnesses for the court operating under the Practice Direction, the ‘terms of reference’ and the tasks of the ISW are different to those of the local authority social worker and children’s guardians.

ISW reports for courts

  • Most reports were of high quality; they were evidence-based, transparent in analysis and forensic in method;
  • Some 25% of reports were poorly structured and lacked evidential ‘signposting’; key information was usually there but poor layout made reports time consuming to analyse.

Delay and duration

  • The timescale from enquiry to instructions averaged 33 days, the median being 22 days;
  • In most cases (68%, 43/63) reports arrived on time; of the remaining ones, most (85%) were delayed following substantive changes during proceedings, thus delay was constructive and purposeful;
  • Seven reports were lodged with solicitors after the due date with no identifiable case driven reason: in almost all of these cases (6/7) delay was no more than 3 days;
  • Overall, the mean duration of parenting assessments was 75 days (just under 11 weeks); the minimum being 27 days, the maximum 179 days;
  • Key findings regarding increased duration of parenting assessments were changes in circumstances post instruction and the number of children.

 

http://www.ciswa-uk.org/wp-content/uploads/2012/04/FINAL-REPORT-EVALUATION-OF-ISW-ASSESSMENTS-FOR-CARE-PROCEEDINGS-FINAL-23-Apr-2012.pdf

 

 

 

PUBLIC FAMILY LAW

Adoption

 

 

Thomas, C. (2013) The Adoption Research Initiative

Funder(s):   Department for Education

Report:  Adoption for looked after children: messages from research: an overview of the Adoption Research Initiative
Peer Review Status: peer-reviewed

Related Journal Articles: none

 

In 2001 the Government of the day began to plan an Adoption Research Initiative to monitor and evaluate the implementation of the Adoption and Children Act 2002.  The overall aim of the research initiative was to examine the impact of the Government’s adoption project on the quality of services for children who are adopted or placed in other permanent placements. More specifically the initiative aimed to:

 

  • Examine how the objectives of the project were being translated into practice;
  • Evaluate some of the changes in policies, procedures and practice introduced in response to the changes;
  • Assess outcomes for children and their families in relation to their welfare and quality of life.

 

Seven large and complex studies were funded over an eight-year period between 2002 and 2010. Several of the studies reported in parts or stages, and in total generated 11 research reports. Details of all the studies, including summaries of each one and other related dissemination materials, are available on a dedicated website for the initiative http://www.adoptionresearchinitiative.org.uk/

 

The purpose of this Adoption for looked after children: messages from research is to synthesise into a single report these studies’ key findings together with their messages for policy and practice.

 

The important underlying common themes and messages from the studies converged on:

  • Permanence;
  • Finding a family;
  • Adoption support;
  • Contact.

 

The overview concluded that the Adoption and Children Act 2002 and the associated programme of adoption reform led to:

  • A greater focus on planning for looked after children’s permanence;
  • Increased the numbers of children permanently placed from care;
  • Reduced delays in the adoption process;
  • Improved support services.

 

The report, however, also identified significant problems that persisted:

  • There were children who had recommendations for adoption for whom adoptive placements were never found;
  • The adoption process could still take too long for children;
  • Inconsistencies remained in the provision and quality of adoption services;
  • There were still concerns that the process had too strong a focus on the rights and needs of the adults involved, despite birth parents’ extremely negative experiences of the adoption process.

 

The overview is available from the British Association for Adoption and Fostering: http://www.baaf.org.uk/bookshop/book_ARi_overview. The report is also available on the Adoption Research Initiative website: www.adoptionresearchinitaitive.org.uk

 

 

Luckock, B. and Broadhurst, K., (2013) Adoption Cases Reviewed: An Indicative study of process and Practice.

Funder(s): Department for Education

Report:  Department for Education

Peer Review Status: reviewed by expert advisory group

Related Journal Articles: none

 

The aim of this small-scale study was to evaluate the strengths of the current adoption process and establish what changes, if any, are required to ensure that the processes of local authorities and court case handling and decision making are consistent with the principles underpinning the Adoption and Children Act 2002.

 

Files for twelve closed adoption cases where care, placement and adoption decisions were actively contested and/or opposed by birth parents were subject to in-depth scrutiny. The twelve cases were selected by purposive sampling from five local authorities. An adoption journey timeline was constructed for each child from adoption to care order.

 

The study found that in the twelve cases reviewed:

  • There was wide variation in the timeliness of the local authority decision to apply for a care order. When local authorities applied to the court for interim care orders, sufficient evidence was filed. However, the standard of social work practice prior to application varied widely. Delayed court applications seriously compromised child development and well-being;
  • Children waited between thirteen and forty nine months to be placed, following care admission. Children waited between one and nineteen months to be placed once the placement order had been made;
  • Birth parents were enabled to oppose applications and orders at all stages of the adoption process;
  • Social work practice in making sense of child development and child experience and in communicating plans to children in care usually fell short of required professional standards. Accounts of children’s wishes and feelings and analysis of children’s developmental trajectories were consistently below required professional standards in regard to care planning;
  • Options for alternative permanent placements with relatives or friends were generally appropriately considered by the local authority; however, steps to enable parents to maintain care of children at home were rarely planned and sustained in a proactive way, once the case was in proceedings;
  • In all twelve cases, the evidence presented by the local authority was tested with reference to further assessments ordered by the court. This process, together with lack of judicial continuity, contributed to delay. The adequacy of the local authority evidence that parents lacked the capacity of commitment to change was the main focus of debate;
  • Experts were instructed in every case, often in large number. They were seen as crucial to the judicial determination of the capacity of parents and appropriateness of care plans;
  • The role of the Independent Review Officer seemed ineffective in averting drift for children in interim foster placements;
  • With regard to contestation, the Children’s Guardian appeared to play a critical role in reminding the court of its primary focus on the welfare of the child. However, the Children’s Guardian contribution is undermined by late appointment or absence in particular.

 

https://www.education.gov.uk/publications/eOrderingDownload/DfERR270.Pdf

 

 

Munro, E.R., Hollingworth, K. (2013) Adoption Reform: Messages from local Authorities on Changes in processes and timescales. Findings from Wave 1.

Funder(s): Childhood Wellbeing Research Centre

Report:  Childhood Wellbeing Research Centre

Peer Review Status: internal review at the Department for Education

Related Journal Articles: none

 

An Action Plan for Adoption: tackling delay outlines the Government’s plans to reform the adoption system. The Department for Education has introduced a voluntary quarterly survey to collect quantitative data from local authorities on the number of children and adopters at each stage of the adoption process, timescales for completion of core processes, children’s age, ethnic backgrounds and disabilities.

 

The Childhood Wellbeing Research Centre has been commissioned to undertake three waves of complementary qualitative data collection at six months intervals in order to assist with meaningful interpretation of the qualitative data, examine factors affecting adoption timescales and causes of delay and explore how local authorities are responding to the adoption reform agenda. Twenty local authorities were approached to participate among those that met the adoption score card average time threshold indicators.

 

This report outlines the findings from the first wave of data collection between October and November 2012. Telephone interviews were undertaken with adoption managers from 15 out of the 20 local authorities selected for inclusion. The aims were to:

  • Explore strengths and limitations in current adoption policy and practice;
  • Examine barriers and challenges to reducing delays in the adoption process;
  • Discuss recruitment strategies for adopters;
  • Explore how management information system data on adoption processes are used to inform decision-making;
  • Examine levels of awareness concerning proposed reforms and issues emerging in the early stages of implementation.

 

Key findings included:

  • A wide range of factors were highlighted as contributing to delays in the decision-making processes that can be detrimental to children’s future wellbeing;
  • 13 out of 15 of the adoption managers interviewed cited court decisions as contributing to delay in the adoption process. The concerns related to the length of care proceedings, commissioning of additional assessments on birth parents and/or friends and relatives, as well as the use of experts;
  • Adoption managers expressed their commitment to reducing unnecessary delay and ensuring the timely completion of adoption processes. However, they expressed concerns about the tight timescales for the completion of the adopters’ approval process on the basis that speed may be at the expense of quality;
  • The main cause of delay in the children’s social care arena was ‘judges’ to be matching harder-to-place children with suitable prospective adoptive carers;
  • A range of strategies were employed to facilitate recruitment of potential adopters such as radio, press and television advertising;
  • Adoption scorecards were deemed useful at highlighting ‘where we are at and what we need to focus on’;
  • Adoption managers expressed different perspectives on whether a 26 week timetable for the conclusion of care proceedings would prove feasible and sustainable;
  • Adoption managers questioned whether removing the requirement for the adoption panel to scrutinise and approve children’s plans was beneficial and suggested that the new approach was less robust.

 

http://www.cwrc.ac.uk/projects/documents/Adoption_reform_FINAL_report_-_processes_and_timescales_-_March_2013.pdf

Interviews and focus groups are now being undertaken with adoption managers and social workers to examine the actions that local authorities are taking to tackle delay in the adoption process and to explore the impact of the reforms http://www.cwrc.ac.uk/projects/1129.html

 

 

PUBLIC FAMILY LAW

Update on ongoing or forthcoming research projects

 

 

Pre-proceedings

 

NCB Research Centre, The Role of the Independent Reviewing Officer in Improving Care Planning for Looked After Children

 

Local authorities are required to appoint Independent Reviewing Officers (IROs) to have independent oversight of the way that looked after children are being cared for. Their primary focus is to quality assure the care planning process for each child, and to ensure that the child’s current wishes and feelings are given full consideration. New guidance has been in operation since April 2011 in an attempt to strengthen the existing arrangements, but some have called for more radical reform. The aim of this study, funded by the Nuffield Foundation, is to develop an evidence base about the implementation, effectiveness and costs of the IRO role, in order to inform policy and practice.

 

The research involves:

  • A national online survey of IROs and IRO managers and a survey of all Directors of Children’s Services. Data from Ofsted, DfE and Cafcass is also incorporated into the analysis;
  • Qualitative research are being carried out in four local authorities, including interviews with key stakeholders and looked after children;
  • Focus groups with IROs and social workers, and analysis of a sample of care plans;
  • An analysis will be undertaken of the costs associated with the IRO service.

 

An interim report covering survey findings is expected in July 2013 and the final full report is expected in late 2013.

 

http://www.nuffieldfoundation.org/role-independent-reviewing-officer-improving-care-planning

 

 

The contribution of experts

 

Dr Brophy, J., Owen, C., Sidaway, J. and Dr Johal, J.J. (forthcoming) The Contribution of Experts in Care Proceedings: Evaluation of the Work of Independent Social Work in Care Proceedings. Stage 2. CISWA-UK and University of Oxford

 

Concerns about the use of independent social work (ISW) assessments emanated from submissions to the Family Justice Review (FJR). Concerns included views that ISWs can cause delay, duplicate existing local authority assessments, and undermine confidence in social work assessments.  It was also said such reports result from human rights arguments by parents – to which courts too readily accede.

 

This two part study addresses a lack of robust empirical data in this field.  Stage one is now completed and available at http://www.ciswa-uk.org/wp-content/uploads/2012/04/FINAL-REPORT-EVALUATION-OF-ISW-ASSESSMENTS-FOR-CARE-PROCEEDINGS-FINAL-23-Apr-2012.pdf

 

Stage II will explore the impact of assessments and the circumstances in which they are commissioned by courts with a sample of senior judges.

 

Provisionally, findings on the quality and duration of ISW reports indicate that with adjustment, the deployment of ISWs may assist the family justice modernisation programme to meet timescales without sacrificing quality.

 

However the authors identify some key questions that remain: first the impact of reports on judicial thinking and decision making, and second the views of local authority social workers and advocates. There would appear to be benefits to local authorities in some circumstances and given timescales for the filing of evidence and completion of cases.

 

The study is due to complete in June 2013 and a report will follow soon afterwards.

 

 

Courts

 

Harwin, J. Family Drug and Alcohol Court (FDAC) – Evaluation Research Study. Phase 2 (Nuffield Foundation)

The Nuffield Foundation and Home Office funded Brunel University to carry out an independent first stage evaluation of FDAC (2008-2010). The aims were:

  • To describe the FDAC pilot and identify set-up and implementation lessons;
  • To make comparisons with standard court proceedings involving parental substance misuse, including a comparison of costs;
  • To indicate whether this different approach might lead to better outcomes for children and parents.

 

Key findings included:

  • More FDAC than comparison parents controlled their substance misuse;
  • More FDAC than comparison parents were reunited with their children;
  • More FDAC parents engaged in treatment and other services;
  • More FDAC children placed more rapidly in alternative permanent families when reunification was not possible
  • More constructive use of court time and some potential savings for the court system.

 

The report can be downloaded from http://www.brunel.ac.uk/fdacresearch

 

A second stage study is being conducted by Brunel University, funded by the Nuffield Foundation. It started in June 2011 and will finish in late 2013.

It continues to:

  • Compare FDAC child and parent outcomes at final order with cases heard in ordinary court, but with a larger sample than before;
  • obtain the views of parents, parent mentors and practitioners.

The evaluation includes a new element, a twelve month follow up of all parents living with their children at the end of the care proceedings. This will provide comparative information on the sustainability of parental substance misuse recovery, placement stability, child removal due to neglect or abuse, and the initiation of fresh legal proceedings.

 

http://www.brunel.ac.uk/fdacresearch

 

 

 

 

 

 

 

 

 

PRIVATE FAMILY LAW

Update on ongoing or forthcoming research projects

 

 

Litigants in person

 

Trinder, L., Bader, K., Hinchly, V., Hitchings, E., Hunter, R., Miles, J., Moorhead, R., Pearce, J., Sefton, M. and Smith, L. Litigants in Person in Private Family Law Cases (Ministry of Justice)

 

This study, commissioned by the Ministry of Justice, is designed to explore the needs and impact of litigants in person in private family law cases in light of changes to legal aid implemented in April 2013. The study aims to identify the different types of litigants in person, their support needs and their impact on the family justice system using a multi-method qualitative design. The fieldwork for the study was completed just before the introduction of the legal aid changes, which removed legal aid for private family law cases. The dataset encompasses observation of 150 court hearings, three quarters of which involved at least one litigant in person and a quarter where both parties were represented cases to enable comparison. The cases observed were financial remedy, private law Children Act and special guardianship cases. In many of these cases interviews were also conducted with the parties, members of the judiciary, lawyers and McKenzie friends. This was combined with information from the court file. The researchers also ran focus groups with judicial officers, lawyers, Cafcass (Children and Family Court Advisory and Support Service) and court staff. The final report for the study is due for publication in September 2013.

 

Enforcement

 

Trinder, L, Hunt, J., McLeod, A., Pearce, J., Woodward, H. Enforcing Contact Orders: Cases, Courts and Consequences (Nuffield Foundation)

 

Enforcement has long been seen as a significant challenge for the family courts and for policy-makers but there is currently little research evidence about the types of cases involved or the court’s response to inform the debate. The study is designed to address this gap in the evidence base. The research, funded by the Nuffield Foundation, is designed to build a profile of the private law cases where enforcement of a court order is sought, to examine how and why the court responds to applications and to explore the actual and perceived effectiveness of current powers available to the courts to address enforcement cases. The research will examine a national sample of over two hundred enforcement cases, accessed via the Cafcass electronic case files system, combined with a small number of focus groups with judges. The study began in November 2012 and is due to report in July 2013.

 

http://www.nuffieldfoundation.org/enforcing-contact-orders-cases-courts-and-consequences

 

Divorce and Finance

 

Woodward, H. Pensions and Divorce (Nuffield Foundation)

This study, which is being carried out by Cardiff Law School and funded by the Nuffield Foundation, aims to provide detailed information on the extent to which pensions are considered in those divorce cases which reach solicitors or the courts, the circumstances in which pensions are likely (or unlikely) to be included in final settlements, the alternatives adopted and the rationales behind the approach. Extensive data has been collected from 369 divorce court files, and interviews conducted with family practitioners and members of the judiciary in three different locations in England and Wales. The findings will be contained in a full report to be published on the Cardiff University website in Summer 2013.

http://www.nuffieldfoundation.org/pensions-and-divorce

 

ADR

 

Barlow, A, Hunter, R., Smithson, J., Ewing, J., Getliffe, K. and Morris, P, Mapping Paths to Family Justice – A National Picture of Findings on Out of Court Family Dispute Resolution (Universities of Exeter and Kent)

This interdisciplinary ESRC-funded project aims to provide evidence about the usage, experience and outcomes of the three different forms of Alternative Dispute Resolution in family law currently available in the UK – Solicitor Negotiation, Mediation and Collaborative Law. The project consists of three phases:

  • Phase 1 – A national survey to gauge national awareness, use and experiences of solicitor negotiation, mediation and collaborative law;
  • Phase 2 – Interviews with 90 parties and 30 practitioners with experience of the ADR process;
  • Phase 3 – Recordings and analysis of a selection of mediations, collaborative law sessions and lawyer-client interviews.

 

Findings from the three phases will be synthesised to arrive at an overall ‘map’ of family dispute resolution pathways. http://socialsciences.exeter.ac.uk/law/research/frs/researchprojects-/mappingpathstofamilyjustice/

 

Initial findings from the first phase of the study have now been published and are available in the March 2013 issue of Family Law at: http://www.jordanpublishing.co.uk/publications/family-law/family-law-0

 

The first phase consisted of two nationally representative questionnaire studies totalling just under 6,700 adults interviewed face to face (Civil and Social Justice Panel Survey 2012 and the tns-BMRB omnibus survey) probing awareness and experience of the three forms of alternative dispute resolution.

 

Whilst mediation was the best recognised of these forms of dispute resolution, the article considers why people who had used it were, in general, less satisfied with it than those who had used the more partisan alternatives of either solicitor negotiation or collaborative law.  The article also explores the reasons given for rejecting these different dispute resolution processes and highlights the high percentage (46% of the sub-sample of 315 respondents that had divorced or separated) of people who settle disputes without seeking legal advice at all.

 

Phase 2 and 3 of the study are now underway and preliminary findings from 35 of the Phase 2 interviews with parties who had experienced mediation formed the basis of a paper given at the Socio-Legal Studies Association annual conference in March 2013 by Anne Barlow and Rosemary Hunter titled ‘The End of Voluntary Medation?’.  Whilst there were some very positive mediation experiences, the paper drew attention to the worrying pressures felt by some parties to mediate brought to bear by partners, solicitors and in some instances the courts even where there was a history of violence or coercive control within the relationship, due to inadequate or incomplete screening prior to mediation. A correlation between such pressure and dissatisfaction with the mediation experience was found to exist.

 

 

News update

 

 

Resolution’s latest Guides to Good Practice

  • Resolution, which was formerly known as the Solicitors Family Law Association (SFLA), is an organisation of 6,500 family lawyers and other professionals in England and Wales, that supports the development of family lawyers through its national and regional training programmes, through publications and good practice guides and through its accreditation scheme;
  • New Guides for Good Practice were published in late 2012. They set out expectations and provide advice on the practice of family law. They have been drafted by Resolution’s Standards Committee with input from a broad range of members;
  • The guides are endorsed in the Family Law Protocol;
  • The Guidelines promote the constructive and non-confrontational approach to family proceedings.  They have also been fully updated to ensure they are as appropriate for Dispute Resolution processes as for the courts;

 

http://www.resolution.org.uk/site_content_files/files/guides_to_good_practice_2012_lo_res_merged.pdf

 

Managing Family Justice in Diverse Societies

  • This book was edited by Mavis Maclean and John Eekelar and published in early 2013;
  • The book aims to explore what response the law has or should have to different family practices arising from cultural and religious beliefs;
  • It includes consideration both of theoretical issues and also of empirical data about the interaction between specific family practices and state law in a variety of jurisdictions ranging from England and Wales to Bangladesh, Botswana, Spain, Poland, France, Israel, Iran and South Africa.

 

Ministry of Justice new research studies

  • The MoJ Analytical Services has recently commissioned Ipsos Mori, who will be working in collaboration with an academic and practitioner, to conduct action research to evaluate the revised Public Law Outline (PLO).  Local areas will implement the revised PLO on specified dates between 1 July and 7 October and this work is intended to support the completion of public law cases within 26 weeks. The evaluation work will be completed by January 2014;
  • The MoJ Analytical Services is currently procuring a new study on the use and client experience of Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes. Analytical Services will commission the work in July 2013 and plan to have a final report in summer 2014;
  • The MoJ Analytical Services is procuring a new research study on the use of experts in family law cases. Analytical Services will commission the study in August 2013 and have a final report in autumn 2014.

 

For more information on these studies please visit: www.gov.uk/contracts-finder

 

Events and Conferences

SLSA 2013 Conference

 

  • The SLSA annual conference 2013 was hosted by York Law School on between 26 and 28 March, 2013. Around 350 delegates attended;
  • In her plenary speech titled ‘Should Judges be Socio-legal Scholars?’ Lady Hale of Richmond, Justice of the Supreme Court, considered whether and how judges should consider socio-legal research, drawing on a number of examples including some relating to family law. Her speech is available at: http://www.slsa.ac.uk/content/view/179/166/#Hale;
  • A number of papers were given in the Family and Children, Law and Policy Stream. They flagged mainly provisional findings from on-going academic research projects. Abstracts and speaker contact details can be supplied by contacting the stream organiser, Professor Anne Barlow: a.e.barlow@ex.ac.uk

 

Forthcoming Statistics Publications

 

Ministry of Justice (MoJ) Court Statistics Quarterly (CSQ)

 

  • The MoJ CSQ bulletin presents national statistics on activity in the county, family, magistrates’ and Crown courts of England and Wales. The bulletin includes statistics on both public and private family law cases, including care and supervision cases, adoption, divorce, contact and residence cases, and domestic violence. This includes data on the volume and duration of cases and legal representation in family law cases;
  • The most recent bulletin was published on 18 April 2013. They can be found on the Ministry of Justice website:

 

http://www.justice.gov.uk/statistics/courts-and-sentencing/judicial-quarterly

 

The local authority children’s social care services workforce, England, as at 31 December 2012

  • This Statistical First Release (SFR) contains information about staff employed (directly and indirectly) by children’s social services departments in England as at 31 December 2012;
  • The SFR was published on 27 March 2013. It can be found at:

https://www.gov.uk/government/publications/the-local-authority-childrens-social-care-services-workforce-england-31-december-2012

 

Acknowledgements

 

We would like to thank all those whose work we have summarised in this bulletin and to other contributors who have reviewed the bulletin and made suggestions for inclusion. With specific thanks to Mavis Maclean, Anne Barlow, Julia Brophy, Judith Masson, Caroline Thomas and Liz Trinder.

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