Family Law

Frances Burton

• Editorial: Routledge
• Año: 2015
• ISBN:
  9781317906407
• Edición: 2
• Categoría: Derecho
• Categoría: Teoría y práctica del derecho

Family Law provides a comprehensive foundation in the key topics covered by courses. It explains the basic principles of the law and practice in their social, economic and historic context, enabling the reader to understand the doctrinal and practical impact of current radical changes in family law in response to cultural and other influences. This second edition has been fully updated in the light of on-going changes to the family justice system including:

• the modernisation of family justice including the new Family Court

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• Atypical formation of the contemporary family: genetic, adoptive, social or through HAR

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• the proposed administrative extra-judicial divorce process

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• financial orders on married and unmarried family relationship breakdown

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• enhanced parental responsibility, 'Parental Agreements' and 'Child Arrangement Orders'

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• the treatment of post separation parenting (and the new DWP child support system)

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• reforms to public child law, including changes to adoption

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• same-sex marriage and the impact on traditional marriage and cohabitation

Visit the companion website for practice questions, updates to the law and podcasts by the author at

http://www.routledge.com/cw/burton-9780415583640

Chapter 1

Introduction: What is Contemporary Family Law?

Chapter Contents

1.1 Introduction

1.2 The changing face of family law

1.3 How family law differs from other civil litigation

1.4 The function of family law

1.5 Family law and human rights

1.6 Current debates

1.7 Summary of Chapter 1

1.8 Further reading

Learning outcomes for this chapter

An understanding of the heavily discretionary based nature of English Family Law including:

(i) An awareness of the dramatic changes in family law in (a) the past dozen years, in particular in the current modernisation project following the Family Justice Review and other catalysts; and (b) the preceding 60 years, specifically in the following, in no particular order:

•financial provision on relationship breakdown;

•legal recognition of atypical adult partnerships (i.e. transsexuals in their acquired gender for all purposes, and both genders in relation to marriage);

•the alternatives to traditional opposite sex marriage of registered civil partnership, same-sex marriage and same-sex informal partnerships;

•the atypical shape of families, particularly owing to human assisted reproduction and the modernisation of adoption practice;

•government steering towards out-of-court dispute resolution, encouraging greater cooperation between separating parties, particularly parents of children;

•a culture of living with cost cutting and self reliance on information gathering without legal advice, including if necessary litigants in person before the court.

(ii) An overview of the areas of family law requiring reform and the underlying reasons for this perception.

(iii) An ability to analyse family law problems in the knowledge that a combination of professional practice and the court’s discretion has developed the law in practice beyond the black letter provision in recent statutes.

1.1 Introduction

1.1.1 Social change and public perception

Before beginning any academic study of family law it is essential to understand the context in which this area of law now operates, the origins from which it has come and to disregard – and firmly shed – any preconceptions: the former ‘traditional’ conceptions, based in a general morality appropriate in earlier times, now bear little relation to the position at the present day.

Family law as a separate discipline, and especially as an academic subject of study, is of fairly recent invention: credit for this usually goes to the late Professor Peter Bromley, who published the first edition of his well known textbook in 1957. Naturally, there was a corpus of family law before that date, in the Matrimonial Causes Acts from 1857 and various child protection statutes, including the Guardianship of Infants Act 1925 from which the concept of the paramountcy of the welfare of the child originates: the separate discipline of Child Law had not then developed as such, and in practice did not until the 1980s.

In the same decade as Bromley, a practical text on ‘Divorce’, as the general subject of family law was then called, was published by Dmitri Tolstoy, an expatriate Russian aristocrat practising common law at the English Bar. At this time, only three generations ago, ‘family law’ consisted mostly of lengthy oral hearings of divorces, and the late Sir John Mortimer QC had not elevated to literary fame nor classic television the career of his father, the blind divorce lawyer Clifford Mortimer, the core of whose practice, like that of Tolstoy, was divorce, divorce and moreover mostly only divorce, as the wife in those days seldom received much money and often none at all if she had been adulterous or was in any way to blame for the parties’ separation; and neither family law in general nor divorce (its best-known feature) in particular appeared in serious academic programmes.

Newspapers of the time show that any public interest was confined to the sensational details of these cases, whereas contemporary students are often now aware of far more fundamental current issues in family law – such as adoption, cohabitants’ and gay rights and the tension between family autonomy and state intervention – from both the popular press and the more serious media. Nowadays an aware student recognises current topics long before beginning to study family law in structured academic or vocational programmes, or reading textbooks, specialist journals and law reports. Indeed this early exposure to family law issues of general interest is often the reason for a contemporary student’s interest in the subject as an option in degree programmes.

The general public also now tends to take an interest in the key family law issues on which the courts daily make decisions. This interest has been encouraged by the broadsheets, e.g. in The Times’ relentless campaign against what is their erroneous perception of the ‘secret determinations’ made ‘behind closed doors’ in family disputes relating to children, including those between the family and the state which can result in children being taken from their birth families, either into the care of the local authority or permanently removing them by adoption. This in turn has led to the decision of the present President of the Family Division, Sir James Munby, to tackle this syndrome by building on the earlier transparency initiatives of a former President, the distinguished commercial lawyer Sir Mark Potter, in allowing greater access by the press to courts hearing family cases: Sir James has already issued a Practice Direction now making most family judgments available for publication, subject to safeguards.¹

1.1.2 Contemporary practice: litigants in person and modern perspectives

The President’s initiative has also coincided with a concentration of greater numbers of litigants in person (‘LIP’s) in the family courts, since following the implementation in April 2014 of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) 2012 these self-represented parties are perforce now obliged to learn enough about the general principles of family law to handle their own cases without lawyers, a much steeper learning curve for any ordinary member of the public than previously, when they could rely for information as well as advice on their legal advisers whose work could, for most ordinary clients, be funded by legal aid. This is because, in April 2013, LASPO removed legal aid from practically all private family law disputes, although it is still available in most more complex public law cases, e.g. care and supervision order proceedings, and in international cases, e.g. child abduction where the UK’s treaty obligations require this in Hague Convention summary proceedings.

The nature and content of family law has also changed and continue to do so. For much of the past two to three years a more extensive and concentrated modernisation of family justice than for around six decades has been ongoing, and is still potentially continuing until at least 2015.

This has been generated partly by fundamental changes in the underlying principles on which family law is based (which can mostly be traced to equality measures²), and partly by cost cutting in litigation and also of the public’s opportunities to engage in legal proceedings by statutorily requiring recourse to out-of-court dispute resolution (a policy of the government following the economic crisis caused by recent banking scandals and the ensuing recession). While this family justice project has, on the one hand, been presented as modernisation in step with changing social values (e.g. the contemporary acceptance of the concept of same-sex marriage), on the other, more frank government sources concede that the key is cost cutting, albeit designed to keep family litigation in step with both social thought and cuts in all public-funded budgets, not just in the law. For this reason undefended divorce, for example, is to become purely administrative, not involving any judicial participation. In other private law cases the Children and Families Act (CAFA) 2014³ now requires all parties to attend a mediation information and assessment meeting (a ‘MIAM’) before they are permitted to start any private law family proceedings, publicly funded or not, unless the case involves an emergency, or some other exception can be certified by the mediator conducting the MIAM; cuts are also required even of court running costs and of the judiciary themselves, quite apart from cuts in legal aid.

Consequently, not only is the scope and extent of family law now much more extensive than in the middle of the last century when Bromley began his seminal first edition, but members of the public have perforce become more aware of their rights (e.g. in the campaigns of organisations like Families Need Fathers in seeking more meaningful contact with their children than a former partner will agree). With so little legal aid available this is clearly more difficult for ordinary people, who are now obliged as LIPs to self-inform before they self-represent if they want to apply to the new Family Court, as not only has the law grown in volume but its complexity has increased, not least because of the demands of the multicultural society in which we now live in England and Wales.

1.1.3 New content of contemporary family law

This is completely different from the post World War II period in which family law was last significantly developed: the sweeping extent of the current modernisation project has proved a shock to judiciary and public alike; frustrated litigants in person have even resorted to physical violence, e.g. where one, not receiving the order desired, and not restrained as previously litigants routinely were by their lawyers, punched the judge in the face, and was of course then most obviously in contempt of court.

The problems include the fact that the current legal landscape bears no relation to the context of those last significant reforms of the 1960s, a period not long after the late Lord Shawcross (then Sir Hartley Shawcross, the post-war Labour Attorney General) commented that family law was a ‘very simple branch of the law’ which required ‘no study or thought at all’. This was mostly true until the major reforms of Divorce in the 1960s and Child Law in the 1980s, not least because the law of that time (albeit itself demanding to contemporary practitioners) lacked the volume and complexity of current family law and practice, which has created such a gloss on original concept and theory that even a lawyer can struggle to understand ...