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Family analysis: Suzanne Todd, partner in the family law team at Withers, discusses how the recent family law reforms have affected her practice.
What are your views on the quantity and pace of recent reforms?
The reforms are wide-ranging and have been introduced in record-breaking time. This Family Justice Review came to life four years ago following the government's acceptance of David Norgrove's recommendations. Yet only this year, we saw the largest reform of the family justice system for decades:
o a complete overhaul of the court system with the creation of the single Family Court and the demise of the family proceedings court
o the legislative changes brought about by the Children and Families Act 2014, the Marriage (Same Sex Couples) Act 2013 and the Crime and Courts Act 2013
o the implementation of the Child Arrangements Programme (CAP 2014) in private law cases, and
o further reforms designed to promote mediation and to make the family courts more transparent
Sir James Munby, President of the Family Division, has made clear the remit of this revolution from the outset, having set up working parties, committees and task forces to deal with various aspects of reform and their consequential provisions. The profession has been kept up-to-speed with his regular 'View from the President's Chambers.
I welcome the reforms in so far as they do what it says on the 'Norgrove label' - namely to improve the family justice system so that it is quicker, simpler, more cost-effective and more fair. However, I am very concerned at the removal of public funding provision for the vast majority of family law cases, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the effect this is having on our justice system generally. As a result of the reforms, some of the most vulnerable families will be hardest hit when it comes to access to legal advice and, therefore, justice.
What are your experiences from the front line?
Clearly it is going to take some time for the reforms to bed in. My view is that practitioners are coping well with the changes, as they have been well-prepared. There are bound to be teething problems as practitioners, court staff and the increasing numbers of litigants in person endeavour to comply with the new rules and regulations. The most important thing is to ensure that 'all bases are covered' so that our clients' needs are met in the event of unforeseen procedural stumbling blocks.
How successful have the reforms been in achieving their objective?
It is rather too early to tell. However, our clients are already benefiting from the accelerated procedure for financial remedy cases and the Financial Remedies Unit of the Central Family Court.
What has all this meant for clients?
Clients understand that there may be an element of uncertainty in procedural matters for some time to come, but are confident that we are well-equipped to deal with the reforms. Those without legal representation will hopefully benefit from the clarity and guidance afforded by the various new procedures and court forms. Later this year, it is hoped, practitioners and litigants in person alike will benefit from guidance from the government on what 'needs' are in financial remedies cases, in preparation for the likely introduction of qualifying (pre)nuptial agreements.
What are your thoughts on the future shape and pace of reform?
More reform is promised by the President in the domestic arena (standard mandatory court orders by the end of the year) and this will no doubt continue at a fast pace with a view to providing a more efficient and accessible family court system. Later in the year, we can expect to receive statutory guidance on how 'needs' are to be defined in the context of the division of assets and financial provision generally, on divorce.
Looking beyond our shores, consultation is currently under way to reform Brussels IIa - the public consultation on the function of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. In cross-border situations this regulation determines the responsible court for spouses who want to divorce. It also determines which court should settle parental responsibility disputes.
What other challenges are family lawyers facing at the moment?
The drastic cuts to legal aid have affected many family practitioners and clients. In addition to this, it is always a challenge to carry out high calibre work within a proportionate, reasonable and competitive costs bracket. A continual challenge for all family practitioners is how to advise clients in the context of our family law legal system, which has judicial discretion at its heart, notwithstanding the statutory guidance set out under the Matrimonial Causes Act 1973, s 25. Achieving a 'fair' result is always the goal.
Do recent and current reforms indicate any emerging trends?
There is a clear trend toward clients benefiting from non-court dispute resolution processes such as family arbitration, mediation and collaborative law. Separating family court processes is another discernible trend. The separation of divorce proceedings from children proceedings has already been implemented by the President following rule changes earlier this year. Next on the cards will be the separation of divorce proceedings and financial remedy proceedings. Further consultation on transparency in the Family Court is also on the President's agenda - specifically whether, and if so what, court documents should be made available to accredited members of the press attending family court proceedings.
What are your predictions for future developments?
I envisage that there will be increasing client interest in non-court dispute resolution processes such as collaborative law, mediation and arbitration and, with the likely introduction of qualifying nuptial agreements, a greater emphasis on client autonomy in reaching agreements which will carry increasing weight in the family law arena.
Suzanne Todd is a highly experienced family lawyer able to advise on the full range of issues which arise on the breakdown of a relationship. She has particular expertise in dealing with complex financial cases often with an international or trust related element.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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