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The President of the Family Division, Sir James Munby, has set out the next steps in the on-going process of reform. Key aspects are:
The Financial Remedies Working Group chaired by Mostyn J and Cobb J has produced its first report, dated 31 July 2014. The Children and Vulnerable Witnesses Working Group chaired by Hayden J and Russell J has produced its first report, also dated 31 July 2014.
The work of the Family Justice Council Working Group chaired by Roberts J, carrying forward the Law Commission’s recommendation that authoritative guidance on ‘needs’ be produced by the Family Justice Council, is well advanced. The President will publish its report as soon as it is available.
The President has published a consultation paper: Transparency - the next steps, as foreshadowed in his last ‘View’ and encourages everyone with an interest in this important topic to let him have their observations. Responses should be sent to Andrew Shaw, by email to Andrew.email@example.com.
The Family Justice Young People’s Board
The President has drawn attention to the work of the Family Justice Young People’s Board (FJYPB) and the importance of listening to their highly relevant and often thought-provoking views. See here for the speech of the Family Justice Minister, Simon Hughes, the FJYPB’s second annual conference took place on 24 July 2014 when he announced the government’s commitment that children and young people involved in family court proceedings will have access to judges to make their views and feelings known. The President has expressed his support for the government initiative and is working with the FJYPB to make a reality of the vision set out in their draft National Charter for Child Inclusive Family Justice.
The pilot scheme in relation to DNA and hair-strand testing for substance abuse is now up and running in the Bristol and Taunton DFJ areas. All the reports are that the pilot is progressing well. The President hopes it will validate the pilot model for the provision of funding for such tests by the Ministry of Justice under arrangements administered by CAFCASS.
The President refers to two other issues relating to experts:
The President referred in his previous ‘View’ to the judgments of Holman J in Kinderis v Kineriene  EWHC 4139 (Fam) and of HHJ Bellamy in Re R (Children: temporary leave to remove from jurisdiction)  EWHC 643 (Fam). The sequel to the first is to be found in the judgment of Judge Bellamy in Kinderis v Kineriene (No 2)  EWHC 693 (Fam) whose judgment in Re R is complemented by his more recent judgment in Re AB (A Child: Temporary Leave to Remove From Jurisdiction: Expert Evidence)  EWFC 2758. The sequel to the judgment of HHJ Wildblood QC in Re B (A Child) (Private law fact finding – unrepresented father), D v K  EWHC 700 (Fam), to which the President also referred, is to be found in the President’s judgment in Q v Q  EWFC 31.
The President explores these issues further in his View referring to a Seminar at University College, London: Litigants in Person: What can courts do?, chaired by Professor Dame Hazel Genn on 18 June 2014. He says that for the family judges who were present, the most interesting presentation was by Bonnie Rose Hough, of the Center for Families, Children & the Courts, of the Administrative Office of the Courts of California, who spoke on Building the Capacity for Justice System Innovation which the President considers merits very careful consideration by everyone with any concern about the plight of litigants in person in our family justice system.
In April 2014 the President floated various ideas about divorce law reform. In his speech in the President’s Court on 29 April 2014 he referred to the need to reconsider practice and procedure in financial remedy cases. In relation to divorce, he said:
‘Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground? Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce? Indeed, may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?’
The President has clarified that what he had in mind were four quite separate issues:
The President also notes that the question has been raised as to whether any of these issues would impact upon the important protections arising under the Divorce (Religious Marriages) Act 2002, inserting what is now section 10A of the Matrimonial Causes Act 1973. He says that the short answer is that, so far as he is concerned, nothing must be done to affect the operation of this very important provision. Steps must be taken to ensure that no procedural or other changes indirectly or inadvertently prejudice the interests of those who might wish to take advantage of section 10A.
A revised version of the social work evidence template for use in care cases has been produced under the aegis of the Association of Directors of Children’s Services. It may require further adjustment in the light of practical experience but it is a valuable tool whose use the President recommends. The templates can be accessed here.
The Advicenow Action Guide Applying for a financial order without the help of a lawyer has now been published. Written with assistance from the Family Justice Council, the President commends it as an excellent guide to financial proceedings for litigants in person. Applying for a financial order without the help of a lawyer is a daunting task for anyone. He believes that this guide provides the sort of help that litigants in person need and presents complex information in an accessible way and that it should be brought to the attention of all litigants in person who appear before the courts in financial proceedings.
The President has circulated for discussion and comment a further batch of draft orders prepared by Mostyn J’s family orders project for use in the High Court. The full use of standardised orders is still impeded by the inadequate state of the IT available to judges and courts. In the medium and long term the only solution is the provision of modern, up-to-date, IT. In the meantime, the President says, we have to do the best we can with what we have. District Judge Geoff Edwards has up-dated his invaluable templates, which have long been appreciated by so many judges, to provide an interim solution for some of the most immediately pressing problems. The President was thus able very recently to send out news of his template program for completion of CAP 02 and 03, which is now available to the judiciary. It should assist greatly in reducing the time judges and court staff are spending on completing the existing orders.
Geraldine Morris is a solicitor and Head of LexisPSL Family.
See here for more practical guidance on family law reform and to arrange a free trial of LexisPSL Family.
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