Family Law News 3rd November – 15th November 2010

1) Legal aid and private family law
The link http://www.familylaw.co.uk/articles/Privatefamilylawaxe15112010-9875 states:

“15 November 2010
Justice Secretary Kenneth Clarke today unveiled the Ministry of Justice's programme to reform legal aid, including cutting funding for family private law cases such as divorce and child contact proceedings.

Of the £350 million cuts to the £2.1 billion legal aid budget, civil and family law come out worst off. In family law, funding will now be limited to "cases which are judged to have sufficient priority to justify the use of public funds".

However, funding for cases where domestic violence is involved will continue. Funding will also continue to be provided for mediation as an alternative to family disputes going to court.

The Justice Secretary also announced today that the fees paid to lawyers in civil and family cases will be reduced by 10% across the board.  Similar levels of reductions will be made to experts' fees.

The programme for reform is contained in two consultations, published today, one on legal aid and the other on civil litigation costs in England and Wales. The consultation on legal aid reform aims to significantly reduce the legal aid budget, while the civil litigation costs paper contains proposals to reduce the costs payable by people who have been sued in "no win no fee" cases, alongside other proposals to make civil costs more proportionate for defendants.

The proposals include assessing all civil legal aid applicants on their available capital, including those on benefits, with greater account being taken of equity in people's homes.  A minimum £100 contribution to their legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, and higher contributions will be expected from those who currently contribute to their legal fees.

As part of the consultation, the MoJ is seeking suggestions for alternative sources of funding for the legal aid fund, to help supplement existing funding arrangements. These include making use of the higher rates of interest generated by money invested in a new pooled account where solicitors would hold their clients' money, and recovering a proportion of legal aid funds in cases where a successful claim for damages has been made.”

2) LSC and family contracts
The link http://www.familylaw.co.uk/articles/LSC12102010-8952 states that:

“12 November 2010
The Legal Services Commission has announced today that it is extending the present family and combined family/housing contracts until midnight on 30 November 2011… The LSC is further extending these contracts until late next year so as to give certainty to providers and clients.”

“The LSC will also allocate new matter starts to cover the period from 15 December 2010 to 30 November 2011. That allocation will be set out in the new contract schedule which will be sent to providers before 15 December 2010. It added that an announcement on the harmonisation of family fees "will be made by Ministers as soon as it possible to do so".

3) Views on Cafcass
The link   http://www.familylaw.co.uk/articles/Cafcass11112010-5642 states that:

“11 November 2010
The Commons Public Accounts Committee has warned in a new report that children's family court service, Cafcass, is "not fit for purpose". The committee said that although the family court advisers saw a 34% rise in its casework following the Peter Connolly case, it has "failed to get to grips with fundamental weaknesses in its culture, management and performance".

“The Committee also said the data which Cafcass holds on cases centrally contain inaccuracies. In July, Family Law Newswatch contacted Cafcass with concerns about the clarity of their statistics. Since then Cafcass has published its care demand statistics on a monthly basis. According to the Committee's report eight out of ten Cafcass areas failed Ofsted inspections, which in 2009 gave overwhelming evidence that the service it provided for children and families was inadequate. In the period from September 2009 to June 2010, Cafcass took up to 40 days on average to fully allocate a care case to a family court adviser. In private law, around a third of section 7 reports to the courts are more than 10 days late. The report also found that sickness absence in Cafcass is unacceptably high…and staff morale is low, reflected in the difficulty management has in achieving staff compliance with requirements of the organisation. Cafcass was only able to respond to the increase in demand after the President of the Family Division issued Interim Guidance that allowed ‘duty allocation' of care cases as a temporary measure so that Cafcass could get on top of its unallocated workload.
The Committee concluded that while there may have been some improvements in Cafcass's performance, the Committee does not share the Department's confidence that the substantial organisational problems will be overcome by 2011.”

“In response, Cafcass chief executive Anthony Douglas said it is fit for purpose because it has "absorbed a massive number of new cases in the last 12 months and have improved productivity by 17%".

“In his evidence to the Committee, High Court judge Sir Mark Hedley disagreed with the Committee's conclusions and said that he thought that Cafcass was "certainly fit for purpose" based on his experiences of the services delivered on the ground.”

However “Ann Haigh, Chair of Nagalro, said … "Cafcass has consistently failed to deliver the service the law requires for children. Its very expensive management has failed over a long period to provide the timely service that vulnerable children need."

4) Fees for foster carers
The link http://www.familylaw.co.uk/articles/Slough11102010-5897 states that:

“11 November 2010
Slough Borough Council has announced it it will cut the fees it pays its foster carers by up to 50 per cent, effective from Monday 15 November.”

Councillor Natasa Pantelic, Commissioner for Education & Children at Slough Borough Council stated that "The reduction in fees was proposed to deal with the unprecedented cuts passed down to us by the government, nonetheless we believe that reducing the fees to a sustainable level, in line with many other authorities is a fairer deal for all of the towns residents." and that "As part of the new package of foster fees, we will be giving some foster carers the freedom to work whereas this was previously discouraged by the authority. This way foster carers can supplement their income from the authority with additional paid employment…”

5) FNF’s seminar in the House of Commons
The link http://www.familylaw.co.uk/articles/FNF10112010-458 states that:

“10 November 2010
Families Need Fathers (FNF) held a seminar in the House of Commons yesterday to highlight the need for a review and reform of child related relocation law.

The charity is campaigning for the parental relocation principles established in Poel and Payne to be brought to an end. The premise behind these cases is that not allowing the parent to take their child to live in another country will so impact on the parent's psychological well-being that the child will be caused harm. According to FNF, in 40 years no evidence has been published that supports this premise.

Professor of Family Law at London Metropolitan University, Marilyn Freeman, was a guest speaker at the event. She said: "there is an international momentum building towards establishing a common approach to relocation disputes, but this has to be based on a scientific understanding of both the impact of relocation disputes on children and young people, as well as what is in the individual child's best interests in these circumstances. Research is urgently required to enable families and decision makers to identify both the risk and protective factors in these cases in order to determine whether relocation will be in the individual child's best interests, or whether it will be harmful for the individual child."

Ann Thomas, Managing Partner of the International Family Law Group in London said the law on child relocation has not changed for 40 years despite the fact parenting patterns are unrecognisable from those of the 1970s. "Unintentionally, by favouring the mother as residential parent, the law has become gender discriminatory and often too little interest is placed on the children's real interests as the parents battle over their future in court."  She added: "It must change. The change must also embrace opportunities to resolve matters outside of court, with specialist mediators and innovative schemes such as Relocation Dispute Resolution hearings."

In the Re AR (A Child: Relocation) decision given in June, Sir Nicholas Mostyn said a review of Payne and Poel by the Supreme Court was urgently needed. The recently appointed High Court Judge and advisory editor of Jordan's International Family Law journal, criticised the judgments for "rewarding selfishness and uncontrolled emotions".

In his judgment Sir Nicholas said: "The core question of the putative relocator is always ‘how would you react if leave were refused?' The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically." He continued: "In my view (for what it is worth) a review of the ideology of Poel/Payne by the Supreme Court is urgently needed, where the ‘emerging body of significant research in various jurisdictions' would be brought into account." Sir Nicholas considered that the Washington Declaration on International Family Relocation was a significant new development which supplies a more balanced, neutral and non-presumptive approach to a relocation application, as is the norm in many other jurisdictions.

Families Need Fathers has sent its proposals for consideration by the Family Justice Review which will publish its interim report in April 2011.”

6) Supporting marriages
 http://www.familylaw.co.uk/articles/IDS08112010-369 states:

 “08 November 2010
The work and pensions secretary, Iain Duncan Smith, has reiterated the Government's commitment to family relationships and expressed his concern of the effect of family breakdown on society.”

“Mr Duncan Smith's think-tank, the Centre for Social Justice, estimates the annual cost of family breakdown at between £20 and £24 billion. Yet, Mr Duncan Smith said the amount the UK spends on the prevention of family breakdown is only around 0.02% of what is spent on dealing with the consequences.”

“Using the example of Norway, he told the conference how lessons could be learnt from the work they are doing with couples who are thinking of ending their relationship. Norway encourages partners to consider each stage of their breakdown process and explain the implications of their separation on their children. “

7) Family Justcie Review: release of an interim report 
The link http://www.familylaw.co.uk/articles/FamilyJusticeReview05112010 states that:

“05 November 2010
Children's minister Tim Loughton has announced that an interim report on the Family Justice Review will be released alongside the Munro review in April. The Family Justice Review, chaired by David Norgrove … is examining the effectiveness of the family justice system and the outcomes it delivers, and will make recommendations for reform. It's also looking at the best ways for courts to work with other agencies supporting children involved in the care system and how more contact rights can be provided for non-resident parents and grandparents.

Professor Eileen Munro's review looks at how to remove the barriers and bureaucracy which prevent social workers spending valuable time with vulnerable children.”

8) The All Party Parliamentary Group on Family Law
The link http://www.familylaw.co.uk/articles/APPG04112010 states that:

 “04 November 2010
The All Party Parliamentary Group on Family Law met for the first time in the Palace of Westminster … to debate What is Marriage? What obligations should it entail?”

“Recently appointed High Court judge Sir Nicholas Mostyn opened the debate and questioned if marriage was an economic union, as the post White position would suggest, should one party have a right of confidentiality in respect of the papers of that partnership? On this point he highlighted the apparent paradox in the recent decisions of Radmacher and Imerman.

Sir Nicholas also commented that the courts have had to make up for a lack of legislation on the division of matrimonial property, and this has not always been consistent.”

“The Parliamentary Group is chaired by John Hemming MP, who in 2008 released a pop single, Bring the Sunshine In, to raise awareness for his Justice for Families Campaign Group.”

“Baroness Deech, the Parliamentary Group's Vice-Chair said: "The question of financial relief is one that has not been addressed by Parliament for decades. In changing economic times and with new perspectives on marriage, cohabitation and the roles of men and women in family life, it is time to reopen the debate about the principles that should govern the allocation of assets and support on divorce."