Family - what’s on the horizon for 2017?
Family analysis: Our panel of experts explore the likely trends in family law for 2017.
Grant Howell (GH), partner at Charles Russell Speechlys
Thomas Dance (TD), barrister at 1 King’s Bench Walk Chambers
Legal developments and practical impact
What are likely going to be the most important cases in 2017, and why?
GH: It is not apparent yet what may be the most important cases of next year. From a practical point of view, the anticipated determination by the Court of Appeal as to whether a wealthy foreign businessman and his wife’s names should be made public would be welcome. The well-publicised diametrically opposed reported views of two different High Court judges as to financial remedy hearings being conducted in public or in private needs to be resolved one way or another. A client must already accept enough uncertainty as to the likely outcome without whether that outcome is to be determined or not in public being determined by the lottery of judicial allocation. However, when considering what is on the horizon for 2017, it is the way in which matters are resolved that is likely to be the main focus.
TD: Of course it is impossible to gaze into a crystal ball but there are some decisions from 2016 that have captured the imagination of family lawyers and, in some cases, the wider public.
The case of R (on the application of Steinfeld) v Secretary of State for Education  EWHC 128 (Admin),  4 All ER 421 involved a heterosexual couple with a child who wanted to enter into a civil partnership, but were prevented from doing so by the Civil Partnership Act 2004, which only applied to same-sex couples. At first instance, in the High Court, their application for a declaration of incompatibility with their rights under the European Convention on Human Rights was refused. However, the Court of Appeal granted permission to appeal in June 2016 and heard the appeal in October 2016. The judgment has not yet been handed down, but it is awaited with interest.
There was an interesting appeal in the pipeline in the world of child abduction in the form of an appeal to the Supreme Court from the Court of Appeal’s decision in Re D (A Child) (International Recognition)  EWCA Civ 12,  3 All ER 770. That case concerned whether the English court would recognise and enforce a ‘custody’ order made in the Romanian court in favour of a father, in circumstances where the seven-year-old child in question had not been given an opportunity to be heard. The Court of Appeal upheld the first instance decision to refuse to recognise the Romanian court’s decision, on the basis that, in failing to hear the child, it violated fundamental principles of procedure in the English court pursuant to article 23(b) of Brussels II bis ((EC) 2201/2003). The Supreme Court granted permission to appeal and, in doing so, said that the case raised ‘a point of law of general public importance, as to the precise extent to which it is a fundamental principle of the procedure relating to all cases about children in the courts of England and Wales that the child should be given an opportunity to be heard’. In the event, the Supreme Court held that it did not have jurisdiction to hear what was, in effect, a third appeal (Re D (A Child) (Supreme Court: Jurisdiction)  UKSC 34,  2 FLR 379). However, in light of the amendments to Brussels II bis, which will come into force sometime next year and which revise the wording in regard to both hearing children and the appeals process, both of those decisions may need some careful reading.
JA v TH  EWHC 2535 (Fam),  All ER (D) 172 (Oct) was the first reported judgment in this country concerning the power to submit a request to the court of another country to assume jurisdiction under article 8, or for authorisation to exercise jurisdiction under article 9, of the 1996 Hague Convention. The judgment of Baker J is worth reading in full, but as the judge identifies in the opening paragraphs, if the Brussels II bis ceases to apply in the future as a result of the EU referendum result, the provisions of the 1996 Hague Convention may assume greater prominence than ever before.
As the law on relocation, both internal and external, has settled with recent Court of Appeal judgments in 2015 and 2016, the case of Re R (a child) (domestic abduction)  EWCA Civ 1016, offered a novel opportunity to the Court of Appeal to consider broadening abduction principles to ‘internal abduction’ cases (ie those where a parent has relocated within the UK without the consent of the other parent). Ultimately, the Court of Appeal rejected those arguments in favour of a holistic welfare analysis. However, as relationships break down and the courts look increasingly seriously at issues surrounding internal relocation, cases similar to this may reappear in 2017.
What are likely to be the most significant legislative and regulatory family law developments, and why?
GH: The Senior President of Tribunals, Sir Ernest Ryder, has made specific reference to the planned reforms to the justice system being the most significant for almost 150 years. All practitioners will recognise the need for reform. The increasing workload of the courts, the delays and the inefficiencies must be tackled.
In the context of family law, the President of the Family Division, Sir James Munby, has made it clear that 2017 will be the year that the divorce process goes online. Might this be a precursor to simplifying the process yet further by at last bringing in no fault divorce, as strongly advocated by Resolution and others, or of ‘uncoupling’ financial remedy from divorce rather than it being treated as ancillary as supported by the President? Neither is yet planned and, in the former case, remains contentious but both clearly would continue the direction of travel.
What is absolutely clear though, given the context of the clear message sent out by Briggs LJ’s Civil Courts Structure Review earlier this year, is that the destination is the use of online dispute resolution generally throughout the court system. Being able to do so in financial remedy claims brings big challenges, but 2017 will see changes designed to facilitate just such a move. By way of example, expect the management of cases by the court and the procedure used to be further streamlined as illustrated by the increasing acceptance by courts of documents filed by email.
In addition, although it will not come to fruition in 2017, further work will be taking place on trying to have a dedicated financial remedy online system. There has already been road testing by family law organisations, such as Resolution and Relate, of just such an approach modelled on the Dutch Rechtwijzer.
As a separate point, it will also be interesting to see if the trend to try and ensure that financial remedy cases are resolved by judiciary with a speciality in that work becomes more widespread around the country. To date that has happened formally, as with the Financial Remedy Unit at the Central Family Court in London, or informally in Manchester and Birmingham.
TD: The most anticipated development in 2017 will be the ‘recast’ of Brussels II bis. Brussels II bis has been in force for over ten years. The explanatory memorandum accompanying the proposed amendments identified that, while the Regulation is overall considered to work well, there are ‘several deficiencies…which should be remedied’. The new Regulation will barely change anything in relation to matrimonial issues, and focuses instead on those matters concerning parental responsibility. The key shortcomings and the consequent changes to Brussels II bis are listed as follows (although this is not an exhaustive list):
- the timing of the return procedure in child abduction cases is ambiguous in its application to the process, especially where appeals were involved. Also identified is the fact that the number of appeals is often not limited in Member States. As a result, the new Regulation will provide for the following:
- a new ‘6+6+6’ procedure, whereby:
§ the Central Authority must receive, process and issue an application within six weeks
§ the first instance court must conclude proceedings within six weeks
§ the appellate court must hear and conclude any appeal within six weeks
- the proposal limits the number of possibilities to appeal a decision on return to one and explicitly invites a judge to consider whether a decision ordering return should be provisionally enforceable
- revised wording on the interim protective measures available to the court on making a return order
- there are practical problems inherent in placing a child in another Member State. A Member State has to consult another Member State before ordering placement there. Due to problems of delay, in practice, children are often sent to the receiving state during the consultation process, leading to legal uncertainty as to the child’s status. The proposed solution is as follows:
- an eight-week time limit on the state receiving the request to deal with it
- uniform requirements for the documents to be submitted with the cross-border request and rules on translation requirements
- the procedure for declaring a decision enforceable (‘exequatur’) can engender delay. As a result, exequatur will be abolished. New rules will govern cross-border enforceability and a uniformity of approach to situations where decisions should not be enforceable
- there are discrepancies in the interpretation of the grounds for non-recognition of decisions given in other Member States, in particular in relation to the hearing of the child. States with stricter standards on hearing a child often refuse to recognise and enforce a decision of another Member State with weaker standards. Further, in the current Regulation, the importance of hearing a child is confined to return proceedings and not all cases concerning parental responsibility. The changes will be as follows:
- explicit in the Regulation, an obligation to give the child who is capable of forming his or her own views an opportunity to express these views
- a distinction is made between when a child needs to be heard (in every case when he or she is capable of forming/expressing his or her own views) and the weight a judge gives to those views
- this distinction must be recorded in the decision and in an annexe attached to the decision; the idea being, in those circumstances, that one Member State cannot refuse to recognise the decision of another simply on the basis that the child would have been heard differently in their respective jurisdictions
- the need for efficient enforcement of all decisions. The most important development in this regard is that, although the means of enforcement is left to the individual Member State dealing with the enforcement application, there will be imposed an ‘indicative time limit’ of six weeks to enforce a decision of another Member State. This will require the court of the enforcing state to inform their Central Authority that the time had passed six weeks and explain why
This proposed new Regulation was approved by the European Parliament this year. In November 2016 the government opted in to this reform (notably in the immediate aftermath of the Brexit vote).
How is Brexit likely to affect these?
GH: The short answer is, in 2017, ‘not much’. In the years that follow, the answer is very likely to be completely the opposite given the intricate web of European law impacting on so many clients. However, while important to them and important to practitioners, other priorities currently prevail given the need still for clarity as to what Brexit actually entails and how it is to be implemented.
TD: It is wholly unclear, still, how the Brexit negotiations will play out over the next 12 months.
In opting-in to the new Brussels II bis Regulation discussed above, Sir Oliver Heald, Minister of State for Courts and Justice, said the following in a written statement:
‘Notwithstanding the result of the referendum on EU membership the government considers it is in the UK’s interests to opt in to this proposal. Firstly, the UK already applies the current Regulation to the benefit of UK citizens, including children, in cross-border families, and it wants to avoid the risk that, if the new Regulation comes into force before the UK’s exit, and the UK has not opted in to the Regulation, the existing Regulation will no longer apply to the UK because it might be deemed inoperable. This might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a Member State. Secondly, even after a UK exit the Regulation will affect UK citizens, principally in other Member States, and it is in the UK’s interests to influence the negotiations. As a family justice measure, this proposal must be agreed by unanimity in the Council.’
What this statement does not address is that, while the UK may well apply the provisions of the new Regulation to decisions of Member States of the EU, there is no guarantee that the decisions of the courts of England and Wales will be treated in the same way. A bilateral treaty is precisely that: bilateral. This is sure to create great degrees of difficulty in the future. Given the timescales though, it may well be that 2017 avoids confronting these questions.
As set out above, one increasing option available to the courts may well be the provisions of the 1996 Hague Convention to which all Member States of the EU are signatories.
Clients and business developments
How do you think the practice of family law is going to develop in 2017?
GH: The vast majority of family law issues will continue to be resolved by the parties rather than by the courts. The number of matters where both parties are legally represented, which dropped below 50% in the official figures for 2015, will continue its downward trend. The practice of family law will reflect both these trends.
Accordingly, where a practitioner is involved, that may well be to facilitate agreements between parties by way of mediation or perhaps using collaborative law. As for those matters that do require determination, the use of arbitration to resolve financial or child disputes will undoubtedly increase as judges get even more supportive, clients become more aware and practitioners become more used to the process.
Finally, dealing with matters online will become more and more the norm.
TD: As every family practitioner knows, there is an increasing move by the Ministry of Justice towards removing private family litigation from the courts and into non court-based spheres. At the moment, section 10 of the Children Act 1989 guarantees to any applicant a right of access to the court. Yet this is being slowly and deliberately eroded.
Hand-in-hand with such considerations are positive and interesting developments for practitioners, such as the formation of the Institute of Family Law Arbitrators (IFLA) and the new children arbitration scheme that launched in July 2016. Arbitration can lend lay parties flexibility, speed, cost-effective dispute resolution and confidentiality. This is evidently the start of a new period for family law dispute resolution and it seems inevitable that 2017 will witness the continued rise of arbitration, alongside mediation and other forms of non-court dispute resolution.
What do you think the key challenges are going to be?
GH: For those designing and operating the family justice system, the major challenge is to provide adequate financial resources and spend those resources effectively. There is talk of up to £1bn being spent on the planned reforms. For too many years, there has been under investment and the history of implementation of IT projects by successive governments is a less than happy one but let us hope this time the outcome will be positive.
For the legislators, the push for online solutions and increased numbers of litigants in person requires a greater willingness to tackle issues clearly highlighted by detailed research. For example, in financial remedy cases, addressing the problem resulting from the uncertainty of the law. Time surely to dust off the Law Commission paper ‘Matrimonial Property, Needs and Agreements’ (Law Com no 343) which deals with this aspect in detail. The need for clarity here is further exacerbated by the concentration of cases in regional centres rather than being dealt with by local judiciary whose likely interpretation would not came as a surprise to local practitioners.
Finally, for practitioners, the need to be flexible beyond just being the traditional family litigator taking matters to court will be paramount in view of what is on the horizon for 2017.
TD: There will be in 2017, as there has been in 2016, a difficult balance between the need to made an application to court and follow more traditional routes of litigation, and the importance of identifying other cases which might be better suited to a different form of dispute resolution.
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