Family Law

Eighth edition

by Kate Standley

Updates for Chapter 1: Family Law

May 2014 update

1.2 Family Law - changes and trends

Access to family justice - legal aid

The removal of legal aid from most private family law cases in April 2013 has profoundly affected access to justice in England and Wales and resulted in a dramatic increase in the number of litigants in person (LIPs). In December 2013, 42 per cent of cases presented to Cafcass for safeguarding checks were cases in which neither party had a solicitor compared with 19 per cent in December 2012. In the same period, only 4 per cent of cases involved parties who both had a solicitor compared with 20 per cent the previous year. As Cobb J has pointed out, many LIPs are some of the most disadvantaged persons in society; and family breakdown, or a dispute about money or children, tends not to be their only problem (‘Private Law Reform’ [2014] Fam Law 644). For a detailed discussion of the separate but associated challenges LIPs encounter in seeking advice in other vital areas of their lives, see the Final Report of the Low Commission (chaired by Lord Colin Low) on the future of advice and legal support (Tackling the Advice Deficit, January 2014 , available at: http://www.lowcommission.org.uk/).

Ryder LJ has recommended that a more inquisitorial process might help those judges who need to deal with very difficult cases involving LIPs; and he laid down guidelines in Re C (A Child) [2013] EWCA Civ 141 (which have been approved by the President of the Family Division). Re C involved an extensive catalogue of errors and repeated breaches of the Family Procedure Rules 2010 and other statutory codes resulting in the father being refused direct contact with his son. The court had failed to conduct a fact-finding hearing and, as a result, the judge's welfare evaluation had been based on a false premise. Ryder LJ’s guidelines aim to avoid some of the procedural irregularities which arose in the case, which were not helped by the fact that, for the most part, neither parent was legally represented.

1.2 (a) Legislative developments

The Children and Families Act 2014 has introduced important and wide-ranging changes to family law, such as new time limits for public law proceedings and provisions regarding post-adoption contact. The Act has introduced into the Children Act 1989 a new presumption of parental involvement, and has replaced contact and residence orders with a new order called a child arrangements order. It has also removed the requirement for the court to consider (on divorce or dissolution) whether to exercise its powers under the Children Act 1989. As a result, it is no longer necessary (since 22 April 2014) for parties to complete a Statement of Arrangements Form (D8A) when filing for divorce or dissolution.

The Anti-social Behaviour, Crime and Policing Act 2014 Part 10 of this Act has introduced changes to the law in order to criminalise forced marriage (see further at 2.6, below).

1.2 (c) Family law reform

The Law Commission is currently reviewing the various means by which family financial orders made under the Matrimonial Causes Act 1973, the Civil Partnership Act 2004 and the Children Act 1989 are enforced. This project does not look at the basis for claims but considers the legal tools available to force a party to comply with an order once it has been made. The Law Commission aims to publish a consultation paper by April 2015 and to produce a final report, with a draft bill, within a further 18 months to two years. For more on this project see Family Financial Orders – Enforcement (available at http://lawcommission.justice.gov.uk/areas/family-financial-orders.htm)

1.2 (d) Demographic and social changes

The following extract highlights how the high incidence of family breakdown has a direct and profound impact on the private lives of many people:

1.3 Openness and transparency in family proceedings

In April 2013, Sir James Munby, President of the Family Division, stated (see ‘View from the President's Chambers: the Process of Reform’ [2013] Fam Law 548) that he was determined to improve access to family court judgments with the aim of promoting transparency:
I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.

Subsequently, in January 2014, his Lordship issued new Practice Guidance to promote transparency in the family courts: Transparency in the Family Courts: Publication of Judgments. The Guidance brings about an immediate and significant change in practice in relation to the publication of judgments in the family courts (and also in the Court of Protection). The Guidance states that:
[There] is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).

The Guidance provides that permission to publish should always be given ‘whenever the judge concludes that publication would be in the public interest’ whether or not a request has been made.

Bellamy J in Re: L (A Child: Rehabilitation to Care of Mother) [2014] EWFC B70 (where a teenage mother was praised for the ‘great strides’ she had made after her child’s birth) has, however, warned against the media focussing too much on the reporting of ‘problem’ cases:
It is, in my opinion, important that the judgments published are not restricted to those handed down in cases of complexity or where there is some notable or unusual feature or where the court makes criticism of social workers or other professionals. There are many other cases . . . which are illustrative of high quality and sympathetic social work practice, of local authorities working in partnership with families to try to support them in caring for their children. In my respectful opinion, cases in which there is evidence of good practice leading to positive outcomes for children and families are just as newsworthy as those which are more problematic.

1.4 The importance of reaching agreement

1.4 (a) Mediation

The requirement in certain cases (such as those involving children, property and finance on divorce or dissolution) that the parties must attend a Mediation Information and Assessment Meeting (MIAM) before going to court is now set out in statute in section 10 of the Children and Families Act 2014. Part 3 of the Family Proceeding Rules (‘Alternative Dispute Resolution: The Court’s Powers’) and Practice Direction 3A – Pre-application Protocol for Mediation Information and Assessment (which supplements Part 3) and its accompanying Pre-application Protocol have also been revised.

1.5 The courts administering family law

A new single Family Court came into being on 22 April 2014 (under section 31A of the Matrimonial and Family Proceeding Act 1984, as amended by section 17 of Part 2 (‘Courts and Justice’) of the Crime and Courts Act 2013). The Family Court deals with all family proceedings (subject to a few limited exceptions) and there is no longer a separate jurisdiction for magistrates' courts and county courts to hear family cases. This change is intended to create a simpler court system, allowing cases to be allocated (with the help of a ‘gatekeeping team’) to a judge with the relevant level of seniority to hear the case. The four levels of judges are lay magistrates, district judges, circuit judges and High Court judges. It is hoped that the new court system will also help reduce delay and ensure judicial continuity.

1.6 Cafcass

Cafcass became a part of the Ministry of Justice on the 1 April 2014. This follows the Family Justice Review’s recommendation in 2011 that Cafcass should become part of the Ministry of Justice in order to ‘bring court social work functions closer to the court process’ (see Family Justice Review: Final Report, available at www.justice.gov.uk).

Further reading and references

Cobb J, ‘Private Law Reform’ [2014] Fam Law 644.
Ryder J, ‘Family justice redefined? Family justice after reform’ [2014] Fam Law 590.
Smart C, ‘Law and family life: insights from 25 years of empirical research’ [2014] CFLQ 14.
Trinder L, ‘The support needs and impact of litigants in person: what can research tell us?’ [2014] Fam Law 664.


January 2014 update

1.1 Studying Family Law

Keeping up to date with family law

The following websites are particularly useful for keeping up to date:

Family Law Week: www.familylawweek.co.uk - This site contains recent key cases and articles, and recent news. It also has annual archives of earlier cases.

Family Law: www.familylaw.co.uk - This site has a very useful ‘Newswatch’ providing news about family law on a daily basis.

Family Lore Focus: www.familylorefocus.com - This site has information on news, cases and articles.

Marilyn Stow’s blog: www.marilynstowe.co.uk

Keeping up to date with Government developments

For current legislation, see www.legislation.gov.uk
For the progress of Bills through Parliament (such as the Children and Families Bill) see www.parliament.uk/business/bills-and-legislation

For Bills currently before Parliament, see http://services.parliament.uk/bills/

1.2 Family law – changes and trends

(See other chapters for changes and trends in particular areas of family law.)

The modernisation of family justice

For a short report on reforming family justice (April 2013) by the President of the Family Division, see http://www.judiciary.gov.uk/publications-and-reports/reports/family/the-family-justice-modernisation-programme/family-justice-modernisation-programme.
See also The Family Justice Modernisation Programme: Implementation Update
Number Two
, February 2013, Judiciary of England and Wales at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/family_implementation_newsletter2.pdf.

Access to family justice – legal aid

Free legal advice is no longer available (since April 2013) for most private family law cases such as divorce, or disputes about children and finances unless a there is evidence of domestic violence, child abduction or forced marriage. Legal aid may, however, be available for mediation. These cut-backs on legal aid mean that fewer people now have access to free legal representation than at any time since legal aid was introduced in 1949. Its unavailability means that many family members will be forced to bring their own case because they cannot afford to consult a lawyer and/or have legal representation. In other words they will be a litigant in person. This will have a considerable impact on the way in which courts have to deal with family law cases as the following case shows:
For more on litigants in person, see The Judicial Working Group on Litigants in Person: Report, July 2013, Judiciary of England and Wales at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf.

The Family Justice Review

Some of the Review’s recommendations have been included in the Children and Families Bill 2012-13 to 2013-14 which is currently going through Parliament. For the content, progress and summary of the Bill, see http://services.parliament.uk/bills/2013-14/childrenandfamilies.html.
The main areas of family law which the Bill seeks to reform are: adoption and children in care; the family justice system; and the Office of the Children’s Commissioner for England.

1.3 Openness and transparency in family proceedings


The judiciary and the government remain committed to ensuring that there is openness and transparency in family proceedings.

Draft practice guidelines

In July 2013 Sir James Munby, President of the Family Division, published a set of draft practice guidelines outlining a new approach to the publication of family judgments. The guidance is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts. The President had previously emphasised his determination to focus on transparency within the family justice system, stating:
I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.

(‘View from the President’s Chambers: the Process of Reform’ [2013] Fam Law 548.)

In September 2013 Munby P said that the case of Re J (A Child) [2013] EWHC 2694 (Fam) raised important questions about how the court should adapt its practice to the realities of the internet, and in particular social media. He once again called for more transparency in the family courts in order to restore public confidence in the system. In this case Munby P permitted a father to post online a video of social workers removing his baby. His decision was not, however, welcomed by the social work profession.

In December 2013 in the case of Re P (A Child) [2013] EWHC 4048 (Fam), which concerned an application for a reporting restriction order in the case of an Italian mother whose child was delivered by Caesarean section following an order of the Court of Protection, Munby P, giving judgment, said:
This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published.

1.5 The importance of reaching agreement

Mediation and legal aid

In January 2013 the Ministry of Justice announced that the Government expected to spend an additional £10 million on legal aid for mediation throughout 2013 in order ‘to support separating couples at the time of year when the number of people considering separation and divorce is at its peak’. The real purpose of this injection of money may be a way of the Government addressing the virtual abolition of legal aid for family law cases (see 1.2 above). However, referrals to family mediation have in fact plummeted due to the fact that the lack of legal aid means that fewer people are consulting solicitors, with the result that solicitors are referring fewer people to mediation.

Mediation and the proposed family justice reforms

Clause 10(1) of Part 2 (‘Family Justice’) of the Children and Families Bill 2012-13 to 2013-14, which is currently before Parliament, provides that ‘Before making a relevant family application, a person must attend a family mediation information and assessment meeting’.

1.6 The courts administering family law

A Single Family Court (SFC)

This new court is due to come into existence in April 2014 under section 17 of Part 2 (‘Courts and Justice’) of the Crime and Courts Act 2013: see www.legislation.gov.uk.
See also The Single Family Court: A Joint Statement by the President of the Family Division and the HMCTS Family Business Authority, April 2013.

Court fees were increased on 1st July 2013

Court fees for an application for divorce, a dissolution of a civil partnership or a nullity order have increased (to £410), and so too have court fees for other family court applications. For instance, applications for a residence or contact order, a parental responsibility order, or a guardianship order now costs £215. An application for a care or supervision order costs £3,320.


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