Friday, 27 July 2012

If Family Law were a Sporting Event...

Scotland v England

I thought I’d have some fun with the blog this week in light of the sporting spectacular that has taken over London.

The nation may be united behind Great Britain as the greatest show on earth gets underway, but within our borders a gap has opened up in the family law arena with Scotland leaping ahead of rivals England (and Wales).

Round One: Cohabitation

The recent case of Gow v Grant which saw the Supreme Court consider the property rights of cohabitants in Scotland, has highlighted the protective laws that cohabitants in Scotland enjoy (and emphasized the mire of uncertainty south of the border).  Yes, there is talk of reform, but that is no match for Scotland’s Family Law (Scotland) Act 2006 with section 28’s game winning performance.  Baroness Hale seems to have taken up the mantle of team coach for England telling players that “lessons can be learned” from the opponents tactics.  For the moment though, the advantage most definitely lies to the north.  It’s Scotland 1 England 0.

Round Two: Gay marriage

The announcement this week that Scotland plans to legalise gay marriage puts the Scots even further ahead in these Family Law Games!  England’s hopes of legalising gay marriage rest with the athletic abilities of Mr Cameron.  In a recent statement no one could deny that the PM showed that he has the determination and the passion to go all the way.  But he will need more than courage of conviction to overcome the significant hurdles ahead which include a challenging head-to-head bout with the Church of England and the constant distraction of a shaky coalition.  Perhaps he is looking to play the long game, and regain some points for elegance of execution?  After all, England will have the benefit of watching Scotland go first through the process? If they slip up, England could capitalise on that and learn from their errors.  For the time being though, it is Scotland 2 England 0 after round two.

European Qualification

Should Scotland succeed in being crowned the UK Family Law Champions (I’m still working out the details), how might they fair on a European stage?

The current leaders appear to be The Netherlands, who trail-blazed the legalisation of same sex marriage back in 2001.  Other nations including Norway, Portugal, Spain, Sweden, Iceland, Belgium and Denmark have followed since then.  With its recent announcement Scotland might be trailing a little but its cohabitation laws, which have been in place since 2006, might help to boost their rankings.

In the mean time, I suggest we sit back and watch the real action unfold in this great city.  Come on team GB!

On your marks, get set…vote!

Friday, 20 July 2012

Going on holiday this summer? You’re not the only one!

Can the PRFD really afford to take a nine week vacation?

Its one of those questions you never like to hear from a hopeful client, especially at this time of year:

How long will it take?”

Chances are that your answer today would be quite different from your answer to the same question two years, or even twelve months ago. It is no secret that the Principal Registry of the Family Division is struggling to cope with the administrative task of managing the volume of paper-work which rolls over its counters every day.  And things are only set to get worse as the government’s new legal aid policy bites.

The Courts do have some discretion (see CPR Practice Direction 39B) as to which cases they will list during the vacation and the majority of those cases will relate to children matters. The long break also means an extended wait for those needing procedural and financial hearings which can have a detrimental effect on clients who are keen to resolve matters and move on.

Why so long?

The legal year is split into four ‘terms’ or ‘sittings’ that are based around the Christian festivals of Christmas, Easter and Michaelmas (for more information visit New Square Chambers Term Date Calculator). The current sitting, known as the Trinity Term, ends on 31 July 2012, after which, only urgent cases will be listed until the legal year starts up again on 01 October 2012 .  That’s a whopping nine weeks operating on reduced judge-power!

The long break over the summer is also partly explained by the historical need not to have courts sitting during the harvest season.  Not really much mileage in that argument any more other than to note that the summer vacation does benefit practitioners and families who may want to focus on their own vacation plans without missing an important hearing date.  

Can it be justified?

There are some practical reasons not to expect judges to sit throughout the year.  The number of days each level of judge is expected to ‘deal with judicial matters’ is set out on the judiciary’s website: for a High Court judge it is 185 to 190 days in a year.  The website also explains that judges need time out of court for “reading case papers, writing judgments, and keeping up to date with new developments in the law.”  Some members of the judiciary may also be involved in collaborative law, such as arbitration, which can help to settle cases outside of Court.

We certainly don’t want a judiciary without the time to properly consider their legal duties.

I am not suggesting that the summer vacation should be scrapped altogether but can its length be justified given the current demand, delays and administrative problems?  Or should more discretion be exercised under Practice Direction 39B to allow more non-urgent cases to be dealt with during the vacation period to help with the backlog?

Comments welcome.  And don’t forget to vote!

Wednesday, 18 July 2012

Results from last week's poll...

First of all, a big thank you to all of you who took the time to vote!

61% of the votes were in favour of introducing a presumption of shared parenting into legislation with 38% happy for shared parenting to be upheld by the Courts.

It will be interesting to see how these results compare to the those of the government's consultation which closes on 05 September 2012.

Monday, 9 July 2012

A Presumption of Shared Parenting? Don’t Ignore the Feminists!

A government consultation has been set up proposing to introduce a presumption of shared parenting when families separate.  The sub-text is to give fathers a more equal footing when fighting for joint custody but is there also a feminist argument to support the government’s new proposals?

What do you think? Vote in the poll!

So what is the feminism angle and why is it being ignored?

One major achievement of the various feminist movements over the last hundred and fifty odd years has been to get women out of the private sphere (home and family) and into in the public sphere (commerce and politics).  The battle is on-going with the most recent drive being to get more women taking roles at the top of their professions, whether that is acting on company boards or having senior judicial roles.  Achieving equality on the public stage has evolved with the concept that the private life need not suffer, the idea that women really can ‘have it all’.  Think of Nicola Horlick who was dubbed ‘Superwoman’ for her ability to juggle a high profile City job with being a mother to 6 children.

This progress is great but, like it or not, when it comes to arguments over who gets the kids, the old stereotypes invariably resurface and the more we prefer one parent over the other then the more we are reinforcing those stereotypes.

The government consultation has not been welcomed by many family law practitioners who claim that the courts are already giving adequate consideration to shared parenting because it is accepted that it is in the best interests of the child to have both parents fully involved in their lives.  That’s all very well but is it enough to rely on the judges to uphold shared parenting without the additional clout of legislation?  I have sat in court for a case where the attitude of the mother and her lawyers was so entrenched in the idea that the mother was the primary carer that no one had really bothered to look at the role that the father played in the children’s lives (claimed to be equal).  Even the court did not question the mother’s assertion until it was disputed by the other side.  The presumption appeared to be that the mother was the primary carer and the father should be out earning the money.  Surely starting from the presumption that both parents are involved is better, even if you do then have to depart from it later on?

Assuming the aim is to achieve equality and not superiority, then the feminist argument here must be that, in order to support the continued progress of women being accepted as equals in the public sphere, there needs to be a presumption that men can make the same progress and achieve equal status in the private sphere by taking on an equal responsibility for, and participation in, the upbringing of the children.  Many father’s want to be more involved in their children’s lives and Families Need Fathers were quick to support the government’s proposals.

It seems that women really do want it all, an equal foothold in the public sphere whilst maintaining a monopoly over the private sphere.


Results from last week’s poll...

A big thanks to those who voted in the first ever Emma's Family Law Blog poll!

The most popular response (50%) was from those who were 'not so recently qualified' who supported  the Supreme Court’s decision in Jones v Kernott.  This suggests that opinion within the legal profession is not necessarily divided in such a way as my initial observations suggested.  Good to debate these things!

Don’t forget to vote in this week’s poll!