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Co-authored by Kate Elliott. With thanks to QEB, 1 Crown Office Row, 1GC, 1KBW, 4PB and 36 Family for their contribution.
The turning of the decade can be a significant moment in time – there was much talk at the turn of the millennium of bugs/explosions/the end of the world at 00.00 on 31st December but we slipped into the 2000s without major incident and thus it continued. The first 10 years of the 2000s came and went and all of a sudden, we were in the 20s and no one could have guessed what life would throw at us. This year has been unexpected, momentous and life-changing and whilst we anticipate we speak for many when we wave a very willing goodbye to 2020, we wanted to take a moment to reflect on the changes we have witnessed in the world of family law over the last decade.
We believe we have witnessed some significant world events this decade – Brexit, Trump, Covid19 – to name but a few, but it hasn’t been all bad! As we draw to the end of 2020 we have teamed up with some of the best minds in family law to reflect on changes in our area over the last 10 years and predictions for things to come in the next 10 years.
In the first part of our two-part blog, we consider the views from the bench on the 10 biggest changes to family law over the past 10 years and how these have impacted on our professional lives and the people we represent. With huge thanks to QEB, 1 Crown Office Row, 1 GC, 1KBW, 4PB and 36 Family, here is what those at the heart of family law have to say about the last 10 years:
Before March 2020, we were all bracing ourselves for another year of discussing Brexit, second-guessing what deal might be made, preparing ourselves for the impact on our particular area of law and attending conferences, talks and webinars on what the world will look like post-Brexit.
There’s nothing like a global pandemic to take your mind off the minor undertaking of separating ourselves from the European Union but with D-Day just days away, we do need to turn our attention to the impact of Brexit and establishing a new modus operandi when it comes to significant areas of our legal practice.
Brexit came up around the (outdoor) dinner table last week and we were reminded that it is essentially nothing more than the biggest divorce of the decade. The parties are in mediation, everyone around them is encouraging them to seek a deal and giving the same sage advice that whilst neither of them will be happy with a negotiated outcome, they can together reach an agreement which they could both live with. And of course, emotions are running high and there is the ever-present threat that discussions will break down entirely and the result will be something that doesn’t meet the needs of either party and leaves everyone hurting financially.
Neatly summarised by Teertha Gupta QC at 4PB: “The old European Union is now a thing of the past for us and with still no deal agreed, we shall be reliant on Art 67 of The Withdrawal Agreement (2019/C 384 I/01) whereby the jurisdiction provisions in BIIa and the EU Maintenance Regulation continue to apply to proceedings started before the end of the transition period (as defined in article 126 as ending on 31.12.20). However, for cases that start after 31.12.20, we are on tenterhooks as to what advice to give clients.”
Perhaps more for Part 2, but it didn’t feel right to reflect on the last decade without at least highlighting the significant levels of uncertainty created by Brexit in this one.
Arguably more quantifiable, and perhaps the biggest change in financial remedy proceedings over the last 10 years, is the court’s approach to spousal maintenance. Penelope Clapham of 1GC comments: “When I first came to the Bar, the idea of joint lives maintenance after a long marriage was commonplace. Over the last 10 years there has been a judicial shift away from this norm towards the idea that both partners should work in whatever roles they are reasonably able to, to maintain themselves separate from the other party as soon as is practicable. It is highly unusual for a maintenance order to exist past retirement, particularly in the age of pension sharing orders.”
Whilst the case law has supported the change, there is consensus amongst our informal panel of experts that this was also in a large part driven by societal changes and a shift in attitudes not just amongst the judiciary but in wider society. When looking back over the last 10 years, Duncan Brooks, Andrew Campbell and Thomas Haggie at QEB consider: “the impact of a severe recession from 2008 onwards, and a consequent reduction in state benefits, along with an increasing number of judges on the bench who are used to balancing hands-on childcare commitments with work, all come to mind, are all societal elements impacting the changes in spousal maintenance orders.”
The result of all of this is that, according to Jane Peckham, James King-Smith and Natasha Isaac at 1 Crown Office Row: “spousal orders are becoming rarer, with a joint lives order now being a legal folktale. Surely, the law has adapted to the change of domestic and social circumstances within family sets ups, so that the next few years will see diminutive changes in this area.”
A question for the future then is surely whether the last year, and the global pandemic will see a further shift or a consolidation of modern family roles. Any remaining ‘traditional breadwinners’ may have spent the entire year working from home and therefore increased their role in the children’s lives and those who weren’t working may have had to pick up employment to support the family in times of furlough, redundancies and reduced salaries. 2020 has undoubtedly changed family life – but will the change stick if/when the world returns to ‘normal’?
Strolling along hand-in-hand with the changes to approach in spousal maintenance orders, in a match meant to be made in heaven, comes the pension sharing order. The last decade saw the publication by the Pension Advisory Group (PAG) of ‘A Guide to the Treatment of Pensions on Divorce’ (thank you Rhys Taylor of 36 Family who has also helped with this blog and was pleased to note that family solicitors now ‘pay more attention to pensions’). In the view of Jane, James and Natasha at 1 Crown Office Row: “the Guide has become and will remain essential reading for those dealing with cases involving more than de minimis pension assets. It is also fortunate that the case of W v H (divorce: financial remedies)  EWFC B10 has been published given that it is the decision of the co-chair of the Group, His Honour Judge Edward Hess, sitting in the Family Court in Swindon in February this year.”
The hope with the report, and indeed the judgment in W v H which has been described as ‘a model of how to approach a financial remedy case in general and well-worth studying’ is that a more consistent and reasoned approach will now be taken to the division of pension assets on divorce. If nothing else, the report certainly assists in resolving case management discussions as it deals comprehensively with when expert evidence should be obtained in respect of pensions and can easily be referred to in discussions with your counterpart when seeking to agree directions.
The obvious downside – more parties seeking pension reports has increased the workload of actuaries and we are now seeing substantial delays in obtaining these reports. It is not unusual for an actuary to estimate 12 – 16 weeks from the date of receipt of the last piece of information and what this means on the ground is that it could take upwards of 6 months to receive a completed report. This leaves families in a potential stalemate whereby meaningful discussions cannot be entered into, as so much rides on the pensions and how they can be used to meet needs.
This is becoming an increasingly common problem in cases at all levels and is something that will need to be addressed over the next decade.
“The erosion of LAA funding for private cases has resulted in iniquitous representation and counter-intuitively more cases in the Family courts. Self-representation and McKenzie Friends, coupled with the effect of the new PD12J and the need for fact-finding hearings has resulted in the system becoming overburdened.” So says Teertha Gupta QC of 4PB and we don’t disagree.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has had a fundamental impact on access to justice in family law matters and the ability of the court to properly and efficiently deal with cases. James Roberts QC of 1KBW comments: “There are many Judgments criticising the fact that in complex cases one or both parties go unrepresented. The lack of legal aid has helped to fuel the number of cases in which litigants are forced to act for themselves with the consequent impact upon the length of time hearings take and the number of hearings that are needed in cases.”
The picture in respect of legal aid is bleak and we are in unanimous agreement that the changes to legal aid has been a negative development in family law over the last 10 years. In our experience, a noticeable development in children matters is the increased occurrence of domestic abuse allegations. We asked Duncan, Andrew and Thomas at QEB what they thought: “The decision to afford legal aid to those who allege domestic abuse but not to those who are accused, has had plainly unfair effects on equality of arms in court. It has also led to the problem of alleged perpetrators cross-examining their alleged victims: a situation that has been rightly criticised in subsequent reporting about domestic abuse claims in the family courts. The funding structure has also raised issues around domestic abuse pleadings in general: all practitioners will be familiar with a relatively thin or unsubstantiated allegation in private law children proceedings that comes under a cloud of suspicion as to whether it is motivated by legal aid claims. The two main effects of this are a) it is deeply unfair on those who are victims of domestic abuse who needlessly face this sort of suspicion, and b) it can cloud cases that would be straightforward with an ‘abuse’ paradigm that means they take longer to resolve.”
Another impact of the decline in legal aid as highlighted by Jane, James and Natasha at 1 Crown Office Row is the increase in the use of McKenzie Friends: “The increase has likely come about due to exceptionally limited Public Funding and/or limited financial resources. Given the Covid-19 pandemic, the appearance of McKenzie Friends is very likely to increase in the coming years. Rights of Audience might be re-visited.”
In our view – mildly put of course – is that whilst it may be of benefit to a litigant in person to have this kind of support, these are unregulated and unqualified individuals and their impact on a case can have wide-ranging and at times disastrous effects.
When it comes to dealing with allegations of domestic abuse in Children Act matters, Duncan, Andrew and Thomas at QEB consider that the introduction of PD12J in April 2014 “saw a substantially revised definition of domestic abuse and clearer expectations as to fact-finding hearings and the making of interim child arrangements orders.” In their view, whilst this should have provided courts and families with greater clarity and support, the recent Ministry of Justice report ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ “concluded that there was evidence demonstrating continuing concerns about how the family justice system recognises and responds to allegations of harm in private law proceedings.”
One of the issues we see in practice is the delay that can be caused by the need for a 2 or 3-day fact-finding and the inconsistency in the approach of judges as to what interim orders should be made pending a fact-finding hearing. Particularly over the last year when court lists have been under an unprecedented amount of pressure, there can be a 6 month wait for a fact-finding hearing and pending the outcome, the allegations made are understandably treated at their highest in terms of risk and safeguarding. This can result in orders being made which seriously limit a child’s access to one parent even with appropriate safeguards in place and risk causing immeasurable harm in the long term.
The issue of delay has become ever-present in 2020 but this is not something that was solely caused by the pandemic. The court system has been bursting at the seams for many years and despite legislation being introduced to assist in avoiding delay, the reality on the ground suggests this has been unsuccessful.
Eleanor Battie at 1 Crown Office Row drew our attention to the introduction of Practice Direction 12B in April 2014:
“The following appears to have had one of the most profound effects on the case management of private law cases:
Para 15.1. Court proceedings should be timetabled so that the dispute can be resolved as soon as safe and possible in the interests of the child.
15.2 The judge shall, at all times during the proceedings, have regard to the impact which the court timetable will have on the welfare and development of the child to whom the application relates. The judge and the parties shall pay particular attention to the child’s age, and important landmarks in the immediate life of the child, including (a) the child’s birthday; (b) the start of nursery/schooling; (c) the start/end of a school term/year; (d) any proposed change of school; and/or (e) any significant change in the child’s family, or social, circumstances.
15.3 While it is acknowledged that an interim order may be appropriate at an early stage of court proceedings, cases should not be adjourned for a review (or reviews) of contact or other orders/arrangements, &/or for addendum section 7 report, unless such a hearing is necessary and for a clear purpose that is consistent with the timetable for the child and in the child’s best interest.”
If polls were possible in a blog post this would be ours: how many family law practitioners have seen the courts actively managing a Children Act matter with express reference to milestones in a child’s life? From where we are sitting, this principle and the need to deal with matters concerning children promptly appears to have gone by the wayside in many cases. Whilst, of course, there are cases in which more time will be needed to deal properly and safely with the matter, gone are the days where you could assure your client that if they wanted to relocate in time for the start of term in September, an application made in January/February would be plenty of time.
Another gem from Eleanor Battie at 1 Crown Office Row which we won’t even attempt to improve with our own commentary:
“The introduction of Part 25 to the Family Procedure Rules 2010 marked a significant shift in the approach taken by the courts and lawyers to the instruction of experts. The instruction of experts such as psychiatrists and psychologist was, arguably, the norm in all but the most simple cases. This inevitably increased delay and cost to proceedings. FPR 2010 sought to address this by stating that the court may give permission to instruct an expert ‘only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings.'”
This provision was amended by virtue of s.13 Children and Families Act 2014, which states: ‘the court may give permission’ only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings ‘justly’ (s.13 (6)).
“There has since been a significant decline in the instruction of experts in the family courts which has, in turn, brought with it a reduction in the pool of available experts.”
Close to our hearts at Family Law Partners and very much in line with the ethos and values of our team, we welcome the increase in parties turning to Alternative Dispute Resolution to resolve matters between them. To quote the wisdom of Duncan, Andrew and Thomas at QEB: “back in 2010, few would have predicted that arbitration would be an option for family law disputes without legislation having been passed. In Fulham FC v Richards  EWCA Civ 855, the Court of Appeal held that ss34-36 of the MCA 1973 was ‘inconsistent with an agreement to submit the dispute to binding arbitration’. Yet, at the end of 2011, the first cadre of family lawyers were trained as arbitrators and, on 22 February 2012, the IFLA scheme made arbitration available for family disputes.”
The pandemic has no doubt heightened the demand for out of court dispute resolution and arbitration (both in relation to finances and children matters) and mediation and private FDRs have helped many families avoid the delays faced within court proceedings and the risks posed by having your matter determined by a judge with an overstretched list and (this year) inadequate technology.
This is being recognised across the board, and Anthony Kirk QC at 1KBW eloquently sums it up: “those involved in separation and/or marital breakdown may now seek a confidential early neutral evaluation of the outcome of their differences, private FDR meetings where finances are concerned, skilled help and legal advice from a single lawyer (whatever the issues might be) and arbitration services in both children and financial remedy cases where judgments/awards may need to be made. The family courts have welcomed these initiatives and continue to do so.”
People have talked about paperless working for at least the last decade – who knew all we needed was a global pandemic to accelerate that process. When we were all sent home from our offices in the middle of March this year, we don’t think anyone could have predicted that we would still be here at Christmas. Fortunately thanks to one of our two great leaders, Alan Larkin we were able to seamlessly adapt, having been paperless for many years and having lead the charge on legal tech but others were not so lucky and have had to adapt quickly. The general view from our perspective was certainly – ‘it’s just for a few weeks’; ‘every 3 weeks there’ll be a review’; ‘there’s no way this is long term.’ Next thing you know Kate works from her Peloton in the study whilst her husband takes calls in amongst Lego fortresses in the playroom and the built-in cupboards on Polly’s upstairs landing are a thing of the past, neatly replaced by an ‘office’ which sees the working from home set up look rather more permanent.
In many ways, Covid19 should be thanked for its impact on how we work. Gone are the days of trawling through central London with a family size suitcase full of files, or standing at the office printer for 4 hours producing 6 identical hard copy bundles. And whilst it can’t be denied that some judges are still not loving the move to electronic working, our barristers can absolutely see the benefit (and of course, as any decent barrister does, deftly and succinctly identify the pitfalls):
Duncan, Andrew and Thomas at QEB: “with no constraint on physical space, it is much easier to retain, access and use documents – as well as being substantially better for the environment. With paperless working comes with its own set of challenges: in particular, ensuring that electronic documents do not become unmanageable and being mindful of the effects on wellbeing if papers are accessible at any time. However, the move to electronic working has, on the whole, had a positive effect on the ability to run cases effectively.”
Eleanor at 1 Crown Office Row: “the change in working was instant and dramatic but, undeniably, effective.”
Nick Anderson at 1 KBW: “the biggest change to court practice in the last ten years is the move to paperless working for judges and lawyers. This has been both a blessing and a curse. On the positive side, it is easier to carry ‘papers’ around, easier to access documents and much less wasteful of resources. On the negative side, it leads to a lack of focus on what material must be before the court (on the basis that it’s easier just to include everything), it can be difficult to manage for unrepresented parties and every case seems to include a huge quantity of emails/ What’s App messages/ Facebook printouts.”
What cannot be denied is that whilst the courts have struggled to implement this, the ability to swiftly transition to remote hearings, whether by telephone or CVP, has ensured that the family justice system could continue to function in 2020. There are huge problems with this system and the courts are undoubtedly struggling but credit where credit is due – the adaptation to new working practices has been managed as best as possible bearing in mind the starting point was an outdated juggernaut already struggling to move with the times.
And to conclude, again a more recent change in focus, but the last few years have seen a marked increase in awareness for mental health and wellbeing within the profession. This has been championed by Resolution and was raised by the President of the Family Division during his keynote speech at last years Resolution conference. Family Law Partners has long recognised the benefits of looking after the wellbeing of the team with regular reflective practice and a firm-wide kindness and supportive approach. Our firm view is that reflective practice should be a requirement for all family law practitioners to ensure that they are provided with a safe forum to share the challenges that come with working in this area. This in turn benefits the clients as it means we don’t take stresses forward into other matters.
The consistent message: overworking and failing to achieve a work/life balance is not good for you or your clients and the profession as a whole need to address this. Whilst we won’t quote on this, we heard views from the coal face on this subject recently which highlighted a wide variance of opinion. At our recent FLP Horsham one-year anniversary cocktail party (socially distanced, via Zoom, of course!) there was much debate amongst our distinguished guests as to whether it was:
The fear: if I don’t answer my emails at 10pm, my instructing solicitor will find a barrister who can. It is this attitude that has to change, along with the fear from instructing solicitors that if I tell my client no, that draft won’t be with you until Monday, they’ll find a solicitor who will do it for them that evening.
Old habits die hard in many professions, and the very nature of legal professionals as hard-working, perfectionist, try-hards (no offence) means that it may well take another decade for the whole profession to practice what they preach but the hope is there amongst Jane, James and Natasha at 1 Crown Office Row:
In recent years there has been a positive recognition of mental health within the legal working environment. Many firms and Chambers have engaged external providers to offer support, advice and counselling for their employees and members. The governing professional bodies and the Courts Service appear mindful of the importance of mental health and working conditions.
One hopes that in the coming years there is a genuine move to a healthy work/life balance.
Teertha Gupta QC at 4PB shares this view and let us leave you with this ray of sunshine as we crawl to the end of 2020 full of hope for the next decade: “We have started to borrow ‘human resources thinking’ from the private sector. Wellbeing is fast becoming central to our approach and family law professionals’ reactions to one another. The Friday night email can now go unanswered until Monday morning and judges, solicitors and counsel are looking at the plain fact that one needs to take a break now and then and that mental health is as important as one’s physical health. This nascent change of thinking is bound to develop in the forthcoming decade and we will become a happier profession.”
We would like to thank all the chambers and barristers that took time out of their busy working lives at Christmas to share their ideas and thoughts with us. We will be back in the New Year with our crystal ball for Part 2 of this blog to share their thoughts and ours on changes to come in family law in the next 10 years.
Kate Elliott is Head of our Horsham team and a Director, Solicitor and Mediator. Polly Dallyn is an Associate Solicitor within our Horsham team.
QEB – Duncan Brooks, Andrew Campbell, Thomas Haggie – http://www.qeb.co.uk/
1 Crown Office Row – Jane Peckham, James King-Smith, Natasha Isaac and Eleanor Battie – https://www.1cor.com/brighton
1GC – Penelope Clapham – https://1gc.com/
1KBW – James Roberts QC, Anthony Kirk QC and Nick Anderson – https://www.1kbw.co.uk/
4PB – Teertha Gupta QC – https://www.4pb.com/
36 Family – Rhys Taylor – https://36group.co.uk/family