We wrote here in August that the House of Commons Women and Equalities Committee had published a report recommending that the law be reformed to give cohabitees the right to seek financial relief from their partners upon relationship breakdown.
The Government’s response to the report has now been published, and the news isn’t positive.
As we explained in our previous post, the report recommended that the Government implement a scheme recommended by the Law Commission back in 2007, whereby cohabitees who had had a child together or had lived together for a specified number of years be given certain basic rights to share the pluses and minuses of the relationship.
Importantly, the scheme would give cohabitees significantly fewer rights than someone who had been married or in a civil partnership.
Cohabitees would also be able to opt-out of the scheme if they wished.
The Government has rejected the Committee’s recommendation, although it has not indicated that it is against giving rights to cohabitees.
Amongst other things (see below), the Government says that the Law Commission’s recommendation is so old that the matter would have to be looked at afresh, rather than implemented now.
Commenting upon the Government’s response the Chair of the Committee Caroline Nokes MP said: “It is deeply disappointing that the Government has closed off the possibility of better legal protections for cohabiting partners for the foreseeable future.”
The report also recommended that the Government launch a public information campaign to highlight the legal distinctions between marriage, civil partnership, and choosing to live as cohabiting partners, in an effort to counter the commonly-held myth of the common law marriage.
As we explained in our previous post, believing the myth can have significant consequences, with many cohabitees falsely thinking that they have legal protections, which turn out to be non-existent.
The Government has partially accepted this recommendation.
Agreeing that it is important that people understand the legal distinctions between getting married, forming a civil partnership and living together as cohabitants, the Government points out that the Department for Education’s statutory guidance on relationships education includes the need for schools to ensure that pupils should be aware of what marriage is, including its legal status.
In view of this, the Government does not consider that a national campaign is necessary, but has committed to take further action to raise awareness of the issue, including reviewing the information on the Government website and considering whether better signposting for further information and support could be made available.
Perhaps the most interesting part of the Government’s response was not in fact related to cohabiting couples, but to married couples, or couples in a civil partnership.
The Government said that “existing work underway on the law of marriage and divorce … must conclude before considering any change to the law in respect of the rights of cohabitants on relationship breakdown.” It went on: “In particular, the Government must focus on its commitment to conduct a review of the law of financial provision on divorce and is currently undertaking work as to how this review should best take place.”
So a review of the law as to what financial claims can be made on divorce/civil partnership dissolution, and how those claims are decided, is in the pipeline.
Of course, we do not yet know when this review will take place, let alone what recommendations it may make, or whether the Government will accept those recommendations.
But the fact that the existing laws, which have largely remained the same for the last fifty years, are to be reviewed is extremely important, and could obviously have major implications for divorcing couples in the future.
As everyone reading this will be aware, the country is in the midst of a cost of living crisis, the likes of which has not been seen for a generation or more.
Inflation is now at 10.1%, the highest since 1982, driven in particular by soaring food prices and energy bills.
Most households in the UK are feeling the effects of the crisis, with poorer households being affected worse than most.
But there is another group of people for whom the crisis could be even more serious: those suffering domestic abuse, especially economic abuse.
As several charities are warning, the cost of living crisis is affecting abuse victims in various ways, including making it more difficult for them to move away from their abusers, and heightening the effect upon them of economic abuse.
It is a common misconception that domestic abuse only comprises physical abuse: violence and threats of violence.
But whilst physical abuse is of course often an element of domestic abuse, it is not always the only way in which a victim suffers.
Domestic abuse can often also include controlling and coercive behaviour, and economic abuse.
Economic abuse has been defined by the government to mean any behaviour that has a substantial adverse effect upon the victim’s ability to acquire, use or maintain money or other property, or to obtain goods or services.
Economic abuse is used by abusers as a method of control, restricting the freedom of victims, and making it much harder for them to escape the abuse.
And it does not require much imagination to see that the cost of living crisis can both encourage an economic abuser, and exacerbate the effect of the abuse on the victim.
The issue has recently been highlighted by several charities, including Women’s Aid and Surviving Domestic Abuse, who have both called upon the Government to help victims.
And the domestic abuse commissioner Nicole Jacobs has said: “I will be working with the government as a matter of great urgency over the coming months to ensure that all domestic abuse victims get the help and support they need to get through this unprecedented cost of living crisis. There is no doubt that everyone is under financial pressure, but the effects could be far more extreme for those experiencing domestic abuse.”
But the law can also help victims of economic abuse, both by protecting them from the abuse and by providing means to obtain financial support.
As to protection from abuse, a victim can apply to the Family Court for non-molestation and occupation orders. A non-molestation order prohibits an abuser from molesting or harassing their victim, and an occupation order regulates who lives in the family home.
An occupation order can be particularly helpful for a victim of economic abuse by requiring an abuser to leaver the family home, thereby enabling the victim to separate from their abuser. It can also require an abuser to pay towards expenses in relation to the home, such as the mortgage, rent and other outgoings.
And there are other ways in which a victim of economic abuse can use the law to seek financial support from their abusers.
If the victim has dependent children of the relationship living with them they can seek child support maintenance.
And if the parties were married, the victim can request the court to order the abuser to pay maintenance to them, even if there are no divorce proceedings.
Of course if there are divorce proceedings, the victim can seek a full range of financial orders against the abuser, including for maintenance, a lump sum, and in relation to property.
Lastly, if the parties were not married and the victim has a dependent child of the relationship living with them they can seek an order for financial provision for the child, which can include a lump sum order, and an order requiring the abuser to provide a home for the child.
The Family Court at Exeter has found that a man has breached an injunction order restraining him from molesting his former partner. The case is a useful illustration of how the Family Court protects a victim of domestic abuse.
Before we look at the case, however, we need to consider briefly how the law operates.
A victim of domestic abuse may apply to the Family Court for two types of orders to protect them from the abuse. These orders are usually referred to as ‘injunctions’.
The first type of order is known as a ‘non-molestation order’. Such an order prohibits one party from molesting, harassing or pestering the other party, including damaging their property.
The other type of order is the ‘occupation order’, which can order an abuser to leave the family home, or prevent them from returning to the home if they have already left.
Obviously, injunction orders are of little value if they cannot be enforced, should the party against whom the order is made breaches the order.
The way in which an injunction order can be enforced depends upon the type of order.
A breach of a non-molestation order is a criminal offence, and therefore if the police believe that an order has been breached they can arrest the person who breached the order and charge them with a criminal offence.
However, as we will see, the police are not always prepared to take such action. In that case, the victim can go back to the Family Court and ask it to deal with the breach as a contempt of court, for which it could impose a prison sentence.
Breach of an occupation order is not a criminal offence, and can only therefore be dealt with under the contempt of court procedure.
So to the Exeter Family Court case.
The case concerned a couple who separated in November last year.
Shortly afterwards, the woman obtained a non-molestation order against the man, in the Exeter Family Court. The order stated, amongst other things: that he must not intimidate, harass or pester her; that he must not damage, attempt to damage or threaten to damage any property owned by her; and that he must not use or threaten violence against the children.
The woman believed that the man had breached the order, and therefore reported the matter to the police. However, the police took the view that there was not enough evidence to convict the man of a breach of the order.
The woman therefore went back to the Exeter family court, and asked it to commit the man for contempt of court.
She alleged that the man had intimidated, harassed or pestered her, had attempted or threatened to damage her property, and had used or threatened violence against the relevant children. In particular, she alleged that there had been four incidents during which the man had breached the order.
The court considered those four incidents in turn.
Before it did so, however, it found that nothing that the woman alleged amounted to violence, or a threat of violence, against the children, and therefore there was no breach of that part of the order.
In the first incident the woman claimed that the man had followed her car late at night, driving close behind with his headlights on full beam, and causing the woman considerable distress. The incident was corroborated by CCTV footage, and the court was satisfied beyond reasonable doubt that in acting as he did the man was harassing and intimidating the woman, and that it was his intention to do so.
As to the other three alleged incidents, however, the court found no breach of the non-molestation order. All three incidents also involved encounters on the road with the man’s van, but all were found to be just chance encounters.
The man will be sentenced at a later date.
It is a sad fact that many separating parents are unable to agree arrangements for their children, with the result that one or other of them has to apply to the Family Court for a child arrangements order.
But while a court order may provide a solution to the dispute, there will often be a price to pay, in the time that it takes the court to deal with the matter.
Delay is the scourge of children proceedings, often making a bad situation considerably worse.
A delay of, say, six months, which as we will see is not at all unusual, is a long time in the life of a child. Just having an unresolved parental dispute hanging over the child for so long can be extremely harmful.
And if no contact is taking place between the child and the parent pending the resolution of the proceedings, such a delay may cause irreparable damage to the child’s relationship with that parent.
The law fully recognises the harm that can be caused to a child by delays in children proceedings.
In the very first section of the Children Act, the primary statute dealing with the law relating to children, the ‘no-delay principle’ is set out:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”
But laudable though such a principle may be, the reality is that delay often occurs in children proceedings.
And this is confirmed by the most recent Family Court statistics, for the quarter January to March 2022.
The statistics reveal that in that quarter it took on average of 46 weeks for children disputes between parents to reach a final order, i.e. case closure. This was up 7 weeks from the same period in 2021, and the highest value since 2014, when the quarterly Family Court statistics were first published.
In fact, the statistics show that the length of time that children cases have been taking has been increasing since 2016.
If the upward trend continues at present rate, it won’t be long at all before the average reaches a year, and we could easily see an average of 66 weeks in a couple of years’ time.
And it should be remembered that this is just an average – many cases obviously take considerably longer.
A glimpse of where we may be heading was provided by a European Court of Human Rights judgment that was published last week. The judgment concerned children proceedings in Serbia, but it is not difficult to imagine a similar scenario occurring in this country.
In the case the father was seeking contact with his son. He began court proceedings in March 2005, but the case was not finally dealt with by the court until February 2009. During those four years the court had only allowed the father limited contact with his son.
The father then took the Serbian authorities to the European Court of Human Rights, claiming that his right to respect for his family life had been violated, due to the protracted length of the proceedings. This had prevented him from fully exercising his parental responsibility over his son, to include overnight and holiday contact, without relevant and sufficient reasons being given for limiting his contact rights throughout the proceedings.
The application was opposed by the Serbian authorities, but the European Court ruled in favour of the father.
The court found that the authorities had for several years failed to do everything in their power that could reasonably have been expected of them to take into consideration the legitimate interest of the father in developing and sustaining a bond with his child, and the son’s own long-term interest to have a bond with his father.
The father was awarded four thousand euros damages, but no financial award can of course compensate for the damage to the father/son relationship, and the lost time that the father should have spent with his son.
To understand how we strive to mitigate the impact of delays on children’s proceedings, consider how our commitment to best practices, exemplified in the Walker Way, ensures swift and effective resolutions for our clients. To explore practical solutions for avoiding the detrimental delays discussed in our examination of current family court statistics, consider how our Child Law team at Walker Family Law can assist in achieving a timely and effective child arrangements order. To address the pervasive issue of delays in children proceedings, exploring alternatives to court, such as family mediation, can offer a more timely and less adversarial resolution. For more information on how family mediation might help, see our detailed Family Mediation service page.
Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited
The family court has powers to protect victims of domestic abuse, and hopefully to prevent recurrences of the abuse. However, the effects of abuse upon victims do not stop when the abuse ends.
Victims of abuse may require support long after the abuse has ended. And much of that support will come from local organisations, who provide counselling and other forms of help to survivors.
A recent announcement of extra government funding for such organisations in Avon and Somerset is therefore highly welcomed.
The Office of the Police and Crime Commissioner (‘OPCC’) has announced that it has secured over £1.4million over a three-year period that supports victims of abuse, domestic and sexual violence.
This extra funding follows a recent announcement by the Ministry of Justice of an additional £6.6million per year nationally to help services supporting victims of sexual violence and domestic abuse. The total funding pot ring-fenced for Police and Crime Commissioners (‘PCCs’) across England and Wales to commission domestic and sexual violence services now totals £21.7million, complementing existing funding available from government, local authorities, health and others as set out in the government’s Victims Funding Strategy.
In Avon and Somerset, the funding will be used to provide counselling for survivors of domestic and sexual violence, including children and young adults, increase capacity to help more victims, run peer support groups and engage with women in the Criminal Justice System.
Avon and Somerset PCC Mark Shelford commented:
“I am delighted that the OPCC and victim providers have secured this additional funding from the Ministry of Justice.
“The extra funding will allow local organisations to support more people across Avon and Somerset – including children and young adults – with lived experiences of domestic abuse and sexual violence.
“Our local victim services will be able to continue to increase their capacity and, as a result, engage and support more victims in a range of ways including workshops, counselling and peer support groups.
“As I’ve said before, it is essential that victims know that help and support is available when they want to access it. The funding over a three-year period will make a massive difference to the services who will receive it and ensure victims are supported in the long-term.”
A total of 19 local organisations across Avon and Somerset will benefit from this additional funding including:
The Green House, a charity based in Bristol which provides free counselling for anyone who has experienced sexual abuse, and the Somerset Phoenix Project, which is part of Barnardo’s and supports children, young people and families affected by sexual abuse, will receive £64,150.40 to jointly deliver psychoeducational workshop to families and young people, as well as increase the team’s capacity
Mankind Initiative, a charity focussing on male victims of domestic abuse that has its office in Taunton, will receive £8,000 to continue to deliver their nine-week virtual group Pattern Changing Recovery Programme for male victims and survivors of domestic abuse.
The Southmead Project, a charity providing free counselling and support for survivors of abuse and addiction across Bristol and surrounding areas, will receive £28,931.30 to provide additional counselling support for those with lived experiences of sexual violence and domestic abuse.
Advocacy After Fatal Domestic Abuse, which offers specialist and expert Advocacy and peer support after fatal domestic abuse, will receive £15,750 to provide specialist practical and emotional support to families bereaved by suicide or unexplained deaths following domestic abuse.
The Southside Family Project, a charity that supports individuals and families living in Bath and North East Somerset, will receive £21,645 to provide targeted counselling for those who receive support from an Independent Domestic Violence Advisor.
Opoka, a specialist domestic violence service in Bristol for Polish women and children in the UK, will receive £18,500 to provide specialist advocacy and bilingual support to Polish victims and families of domestic abuse including helping to navigate them through the Criminal Justice System, access legal aid and provide counselling.
VOICES, a charity based in Bath dedicated to providing recovery support and advocacy for people affected by domestic abuse, will receive £20,000 to fund a gateway service that allows recovery support work to take place.
Kinergy, a specialist counselling agency in Bristol offering support for survivors of sexual abuse & sexual violence, will receive £36,000 to provide additional counselling for victims of sexual violence.
Next Link, which operates local domestic abuse support services in South and North Bristol, will receive £25,811.20 to provide peer support facilitators to support victims of domestic abuse including a dedicated Black and minoritised victim group, young victim group and LGBTQ+ victim group within the programme.
Lastly, IP1625, a young people’s charity with its Head Office in Bristol, will receive £19,000 to provide a wellbeing coach that offers a range of support for young people who have or who are experiencing domestic abuse or sexual violence.
It is sadly not unusual for one party to child arrangements proceedings to make allegations of abuse against the other party. Perhaps the most common scenario is where the father is seeking contact with the child and the mother alleges that the father has been abusive towards her.
The law recognises that domestic abuse is harmful to children, including where they are victims of abuse by witnessing one of their parents being violent or abusive to the other parent, or by living in a home in which domestic abuse is perpetrated.
Obviously, therefore, the court will need to determine the truth of any abuse allegations before it makes a decision upon arrangements for the child, but exactly how does it do this?
The court will normally arrange a separate hearing to determine the truth of abuse allegations. This is known as a ‘fact-finding hearing’.
At the fact-finding hearing the court will consider the evidence of both parties, and decide the truth of each allegation.
This will involve the parties themselves giving evidence to the court, along with any witnesses they wish to call (although it is the nature of abuse allegations that there are rarely other witnesses).
When hearing such evidence the court will follow certain legal principles.
The first principle relates to the burden of proof.
The burden of proof rests with the person making the allegation. Thus, for example, if the mother is alleging that the father has been abusive towards her then she must prove those allegations.
The second principle relates to the standard of proof.
The standard in these cases is the ‘balance of probabilities’, in other words in order to find an allegation proved the court must be satisfied that it is more likely than not that the allegation is true.
Note that there is no room for a finding by the court that something might have happened – it must find either that it did happen, or that it did not.
An important factor in deciding whether an allegation has been proved is the credibility of the witnesses. The judge will therefore form a view as to the credibility of each witness, and the reliability of their evidence. Obviously, the evidence of a witness who is considered reliable is more likely to be believed than the evidence of a witness who is not.
It is also obvious that it is not uncommon for witnesses in cases of this sort to tell lies when giving evidence.
The court will be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. And the fact that a witness has lied about some matters does not mean that they have lied about everything.
The judge will also bear in mind that memories can fade or change with the passage of time, particularly in respect of events which were traumatic or distressing at the time.
And just because a party is found to have lied to the court, that does not prove the case against them. Thus if a mother makes abuse allegations against a father and the court finds that the father has lied to the court, that does not of itself prove the truth of the mother’s allegations.
Lastly, if the party defending abuse allegations fails to prove the truth of their alternative version of the events surrounding the allegations, that again does not of itself prove the truth of the allegations.
Once the court has heard all of the evidence, it will make its decision upon each of the allegations, applying the above principles.
The court will normally go through each of the allegations in turn, and give its finding as to whether or not that allegation has been proved.
Unless there is a successful appeal against the findings, they will be considered to be true in the course of the rest of the proceedings, and will obviously have a significant bearing upon the final decision regarding the arrangements for the child.
To understand the comprehensive definition of domestic abuse and its various forms, check out our detailed guide here. For those seeking a less adversarial approach to resolving family disputes, consider exploring alternatives to court such as family mediation. To understand more about how the court deals with cases involving social services and child welfare, see our article on children and social services.
In 2019 the Ministry of Justice established a panel of experts to gather evidence on how the family courts protect children and parents in private law children cases (i.e. disputes between parents about the arrangements for their children), with regard to domestic abuse and other serious offences.
The panel became known as the ‘Harm Panel’ and their report, published in 2020, became known as the ‘Harm Report’.
The report found that the evidence submitted to the panel “unveiled deep-seated and systemic problems with how the family courts identify, assess and manage risk to children and adults.”
These problems, they said, were arising from four overarching, systemic barriers to the family courts’ ability to respond consistently and effectively to domestic abuse and other serious forms of harm:
The Harm Report made a number of recommendations to address the systemic problems it had identified, including changing the way in which the courts work, improving safety at court, and enhancing the voice of the child.
In response to the Harm Panel’s findings and recommendations, the government published an implementation plan in June 2020, which set out “the first, immediate steps” to address some of the concerns raised in the Harm Report.
Now Women’s Aid, the national charity working to end domestic abuse against women and children, has published its own report into the implementation of the Harm Panel recommendations.
The report has found that the justice system is still failing domestic abuse survivors and their children. It reveals that despite some progress, not enough work has been done towards the transformed system that the Harm Panel recommended, and that there is evidence of progress stalling, even reversing.
Women’s Aid state that domestic abuse survivors and support workers told them that they have continued to be disbelieved, that children have continued to be forced into unsafe contact arrangements with abusive parents, and that perpetrators have continued to use child arrangement proceedings as a form of post-separation abuse.
Key findings included:
Farah Nazeer, chief executive of Women’s Aid, commented:
“The current system, based on misogyny, victim-blaming, and a lack of understanding trauma is as tragic as it is unacceptable: we must show women and children that they will be listened to, believed and supported.
“We call on the government to ensure the Harm Panel recommendations are actioned as a matter of urgency- there can be no further delay. We are ready and willing to work with agencies and organisations across the family courts system to ensure progress: only by working together can we achieve the results we need. We know that the implementation of the Harm Panel report can deliver real change, and at Women’s Aid, we will not stop campaigning until all women and children are safe.”
There have been changes in the family justice system over the last two years. For example, measures have been taken to improve safety at court, and new ‘pathfinder’ courts are being trialled in courts in Dorset and North Wales, as we have reported here previously. The family justice system does accept the recommendations of the Harm Panel, but obviously progress is slow, and meanwhile more mothers and children are being failed by the system.
Home security cameras, or CCTV, are becoming ever more popular. Each year they record hundreds of hours of the goings-on in the family home.
But what if one separated parent is unhappy about what is going on in the other parent’s home? Can they obtain footage from the cameras in their home?
The question was tested in a recent family court case.
The case concerned what the judge described as a “high conflict” contact dispute, with the father seeking contact with his two children, aged 6 and 3.
The central issues in the dispute were how often the children should spend time with their father, should this include overnight stays, and should the contact be supervised by a third party?
The mother, meanwhile, claimed that the father had been responsible for coercive and controlling behaviour, as well as emotionally abusive behaviour, towards her and the children.
The father applied to the court for disclosure of CCTV footage from CCTV cameras in the mother’s home, during specific periods. The mother’s home had no fewer than 29 Google Nest cameras in almost every room, which she said was for security reasons.
The background to the application was as follows.
The father suggested that the mother was preoccupied with knowing what was going on in her home at all times, and spent many hours reviewing the footage. He also said that she had used it as an evidence gathering device to support her case as to the father’s behaviour towards her, the children and the family nannies. At an earlier hearing the court had allowed the mother to present to the court a number of short video clips which did demonstrate the sort of abusive behaviour the mother complained of.
The father also said, and this was not denied by the mother, that she also recorded the independent social worker who had been assigned to the case to report and recommend what order the court should make.
The independent social worker recommended that a sample of Google Nest footage extending over 72 hours should be downloaded and suitably edited by an expert, to provide evidence of parenting of the children in the mother’s home by herself and the nannies.
In the light of this recommendation, the father made his application, seeking disclosure of considerably more footage from the cameras. The mother, on the other hand, claimed that the application was another example of his coercive and controlling behaviour.
When the application went before the court the mother’s counsel argued that the disclosure of CCTV footage would be a gross, even grotesque, invasion of the mother’s privacy, exacerbated by the background of her allegations of coercive and controlling behaviour.
In response it was argued on behalf of the father that the invasion of the mother’s privacy would be mitigated by the fact that the footage would first be checked by the independent social worker, and only footage that he considered relevant to the case would actually be disclosed to the parties and the court.
The judge agreed with the mother. She was satisfied that disclosure on this scale would represent a gross invasion of the mother’s right to privacy, and was unprecedented. There were also the children’s and other adults’ rights to be taken into account.
The independent social worker could carry on his investigations in the conventional way without the footage, and would be able to produce a meaningful report on basis of the other material available.
The judge concluded: “This application, if granted, would represent a fundamental departure in the way such cases are investigated. Whilst there may still be a case where such a departure would be justified I am not satisfied this is one of them.”
So whilst the father’s application was rejected, it is still possible that a similar application may be granted in the future.
The Ministry of Justice has published its latest statistics, both for the work of the family court and for activity in the legal aid system for England and Wales, for the quarter January to March 2022.
The statistics are one of the best guides to the state of the family justice system providing, amongst other things, the most up to date information on the number of new family cases started and disposed of by the court.
And the latest statistics reveal a worrying picture of record delays in the court dealing with cases.
In relation to the family justice system the main headlines revealed by the two sets of statistics are as follows.
Starting with the good news, the statistics show that significantly fewer new cases were started in the quarter, which will obviously reduce the heavy workload of the courts.
The number of new cases (68,134) was down 6% on the same quarter in 2021. This reduction was due to decreases in most case types: financial remedy (18%), adoption (17%), private law children disputes between parents (9%) and divorce (2%) cases (although the divorce cases may have been down because people were waiting for the introduction of no-fault divorce in April).
There was, however, a 4% increase in public law children cases involving social services.
And there was also a 2% increase in domestic violence cases, although the number of applications for legal aid supported by evidence of domestic abuse was down 10% compared with the same quarter in the previous year. This latter figure may be simply reflect a return to ‘normality’ following the increase in domestic violence cases during the pandemic.
But the news is less good when we look at the number of cases dealt with by the courts in the quarter.
There were 57,094 case disposals in January to March 2022, which was 12% down on the equivalent quarter in 2021. This was due to decreases in most case types, including adoption (28%), divorce (21%), public law children (16%), financial remedy (7%) and private law children (1%) cases.
However, there was a 9% increase in domestic violence case disposals.
The critical point here is of course that the number of case disposals was considerably lower than the number of cases stared, meaning that the system ended the quarter busier than it was at the start.
And so to the most worrying thing revealed by the statistics: record delays in dealing with children cases.
With regard to public law children cases, the average time for a care and supervision case to reach first disposal was 49 weeks in January to March 2022, which is up 6 weeks from the same quarter in 2021, and the highest average since 2012.
These cases should, of course, be disposed of within 26 weeks, but only 17% of care proceedings were dealt with within that time limit, which was down 5% from the same period last year, and the lowest recorded since 2012.
With regard to private law children cases (i.e. involving disputes between parents over arrangements for their children) the picture is even worse.
In January to March 2022, it took on average 46 weeks for these cases to reach a final order, i.e. case closure. This was up 7 weeks from the same period in 2021, and was the highest value since the current records began in 2011.
This continues the upward trend seen since the middle of 2016, where the number of new cases overtook the number of cases disposed.
These delays were of course exacerbated by lockdown during the pandemic, which seriously reduced the capacity of the courts to deal with cases. However, the problem was clearly getting worse long before the pandemic.
The Law Society has called for the government to ensure that there are sufficient judges to deal with existing and new caseloads. Let us hope that they do, because these court case delays will be having a serious adverse effect upon the children at the centre of these cases.
It is almost universally agreed that the introduction of no-fault divorce has been a good thing. Gone are the days when someone wanting a divorce has had to lay the blame for the breakdown of the marriage upon their spouse.
And no-fault divorce has made the process of divorce much easier. It is no longer necessary to prove that the marriage has irretrievably broken down because of the other party’s adultery, their unreasonable behaviour, two years’ separation, etc. All that is required now is a simple statement that the marriage has irretrievably broken down.
This increased simplicity, along with the recent introduction of online divorce, has led to more people deciding to do their own divorce, without the assistance of a solicitor.
Whilst there is nothing necessarily wrong with this (although there may still be circumstances where legal advice will be needed for the divorce), the idea that you can do everything yourself brings with it considerable risks.
Doing your own no-fault divorce online only deals with the dissolution of the marriage. But there can be much more than that to getting divorced. In particular, there is the matter of the financial settlement.
When you apply for a divorce you tell the court whether you want to apply for a financial order. However, that is all you are doing. You are not actually making the application, and the court will take no action until you do.
And it is quite possible to finalise the divorce without sorting out financial arrangements, although as we will see in a moment, this is not to be recommended.
However, if you think that you have done everything once you’ve got your final divorce order, you would be quite wrong.
But the risk of doing your own divorce is not just about believing that everything is sorted out. There is also the trap of thinking that if you can deal with the divorce yourself, you can also sort out financial arrangements yourself. After all, how hard can it be?
The answer to that is that it can be very hard, even in apparently straightforward cases.
There are many misconceptions about how finances are sorted out on divorce, and especially about what anyone might be entitled to in a financial settlement.
There are also many pitfalls for the unwary.
Take that situation where the divorce has been finalised before finances have been sorted out. In allowing this to happen, a person could be risking substantial financial loss.
For example, it could mean them losing a potential benefit under their spouse’s pension, as a pension scheme will often provide that if the pension holder dies then their spouse should benefit from the pension, but that benefit will obviously be lost if they are no longer the pension holder’s spouse. The way to prevent this is of course to sort out pensions before the divorce is finalised.
But sorting out pensions can be extremely complex. No one should attempt it without proper legal and financial advice.
And sorting out pensions is only one part of the financial settlement.
And then there is the small matter of knowing what you are entitled to in the settlement. Many people believe that it is simply a matter of dividing everything equally, but that is not always appropriate.
And of course to know what you are entitled to requires that you know what financial assets your spouse has. What if they refuse to tell you, or are hiding something? What do you do then?
In short, it is absolutely essential that you take proper legal advice regarding the financial settlement, before you get divorced, as failing to do so runs considerable risks, including that you may be missing out on your entitlement.
Tempting as it may be to save the cost of legal advice, the cost of not doing so could be far higher.
