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Family Law Journal: June 2015

Frances Bailey and Adrian Clossick look at the potential impact of the Supreme Court decision in Wyatt v Vince

As readers will be aware, the Supreme Court gave judgment in the case of Wyatt v Vince on 11 March 2015. Significant publicity has already been given to the judgment. The facts of the case are, to say the least, unusual and the same factual matrix is unlikely to be repeated in the future. So what, then, are the principles to be drawn from the decision? As the saying goes, is this an example of a hard case making bad law?

Simon Heaney compares the provisions in place for vulnerable witnesses in the criminal justice system with those proposed for family cases

It seems somewhat of a paradox that the court division charged with dealing with family law and all its inherent exposure to vulnerabilities in all manifestations has lagged woefully behind the criminal justice system in grappling with the issue of vulnerable witnesses and their place in the family justice system. It is remarkable that here we are in 2015, yet there is still no actual framework for this area, no prescribed definitions and no formal special measure provisions as have been in place in the arguably more brutal criminal justice arena for some considerable time.

Spencer Clarke and Rebecca Huxford outline the aims and objectives of the Law Commission’s consultation on the enforcement of family financial orders

It is always hoped that financial orders made in family proceedings will be complied with. However, where that is not the case, obtaining the order can be just the beginning of a lengthy process to recover what is due. The Law Commission’s consultation paper, published on 11 March 2015, examines recent improvements to the system of enforcement and asks what else could be done to make the law more efficient and cost-effective. This article outlines the proposals made in the consultation paper and encourages readers to respond to it.

Sarah Jane Lenihan suggests circumstances when it may be appropriate to seek a costs order against a non-party

Most family lawyers will have a client at one stage or another who grumbles about an invoice. Often such complaints relate to work that is both necessary and foreseen as part of the process in achieving their aims, eg to spend time with their child, or to obtain enough capital from a divorce to purchase a property mortgage-free.

Rebecca Harling considers the impact of the legal aid cuts, in particular on domestic abuse cases

In an attempt to cut the legal aid bill by £270m, the government withdrew funding for numerous categories of civil law when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) came into force on 1 April 2013, affecting as many as 600,000 people. LASPOA 2012 established a new regime for legal aid, restricting public funding to those in greatest need. The most deserving end of this spectrum was determined to be cases where the individual’s life or liberty is at stake, they are at risk of serious physical harm or they face state intervention in their family affairs which could result in their children being removed. As a result of this, since 1 April 2013, public funding is now only available in a limited range of family law cases (see 'When is legal aid still available?' below).

Shabina Begum highlights a recent challenge to the gateway requirements for legal aid in domestic abuse cases

As from 1 April 2013 civil legal aid is primarily governed by Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012). Civil legal services have been preserved for some family matters such as non-molestation orders, occupation orders, forced marriage protection orders and child abduction cases. A key change introduced by LASPOA 2012 was that survivors or potential victims of domestic violence no longer automatically qualify for legal aid in family matters in relation to children: they must provide specific evidence in relation to the domestic violence or child protection issue.

Josh Green examines the courts’ approach to disagreements between parents as to religious upbringing

The prickly issue of religion and parenting was thrust into the full glare of the media spotlight earlier this year (Daily Telegraph, 19 January 2015), when a father was ordered to attend Christmas mass with his two sons during the time he was to spend with them in accordance with a court order. Describing the decision of the judge as ‘bizarre’, the father launched an unsuccessful appeal and, thus, we must presume that on one snowy Sunday morning, a Midlands-based Catholic priest found among his congregation a self-proclaimed atheist and his two young children, one of whom his father asserted had already expressed a clear lack of belief; perhaps not the most captive audience a member of the clergy may wish for.