Family Law: reform needed for divorcing partners

Dear Nick

Having gone through a divorce lasting almost three years, which ended up with a Final Hearing, I think the time has come for a complete overhaul of the law in England and Wales.  The process is not only exceedingly expensive, in part as there is a conflict of interest, in as much as solicitors seem to have little interest in wrapping things up early, hence draining hard earned family resources (money as well as the time and anxiety of one or both parties), but also it lacks any sort of clarity.  For instance, and what stood out in particular for me, was that the law in E&W does not clarify what is and isn't counted as family assets.  Secondly, that after going to court the first time, and having agreed verbally with the judge on certain things, my opposite number changed her mind a week later, resulting in considerable delay and additional expense.  And thirdly, it seems that although it may be fair for the courts to make sure that the welfare and interests of children are given priority, it seems to me that this consideration comes only at the end of the process, after both sides have spent a small fortune on legal fees (money which is no longer available for the family), and the children, despite both sides trying their best to shield them from the process, bearing witness to both parents being put under huge amounts of stress and anxiety as things are dragged on.  I cannot help but contrast our laws in E&W with many other countries in Europe, and even just to look across the border to Scotland, where things are dealt with far more efficiently, and where the law makes it much clearer how divorcing parties should handle their affairs.  In Sweden (just one example), the family assets are split 50:50 in virtually all cases.  Such clarity makes the process both short and cost-eefective.  There is minimal loss of family resources and the strain on parents is minimised.  Changes in the Family Law in E&W are desperately needed but will meet huge resistance from the legal profession as they still see it as a significant part of their work and a big money spinner.  It is too late for me to benefit any changes in this law, but I appeal here for changes to be made as I am sure that it will be in the interests of many many families in the future.  I am also quite certain that it is also in the best interests of children to change family law so the process of divorce is less complicated, provides clarity of process, and so that divorce (in particular the process of splitting assets) is done with minimal of fuss and on a time scale that should take no longer than six months in all but the most complicated (or high value) of cases.

Why is this idea important?

Dear Nick

Having gone through a divorce lasting almost three years, which ended up with a Final Hearing, I think the time has come for a complete overhaul of the law in England and Wales.  The process is not only exceedingly expensive, in part as there is a conflict of interest, in as much as solicitors seem to have little interest in wrapping things up early, hence draining hard earned family resources (money as well as the time and anxiety of one or both parties), but also it lacks any sort of clarity.  For instance, and what stood out in particular for me, was that the law in E&W does not clarify what is and isn't counted as family assets.  Secondly, that after going to court the first time, and having agreed verbally with the judge on certain things, my opposite number changed her mind a week later, resulting in considerable delay and additional expense.  And thirdly, it seems that although it may be fair for the courts to make sure that the welfare and interests of children are given priority, it seems to me that this consideration comes only at the end of the process, after both sides have spent a small fortune on legal fees (money which is no longer available for the family), and the children, despite both sides trying their best to shield them from the process, bearing witness to both parents being put under huge amounts of stress and anxiety as things are dragged on.  I cannot help but contrast our laws in E&W with many other countries in Europe, and even just to look across the border to Scotland, where things are dealt with far more efficiently, and where the law makes it much clearer how divorcing parties should handle their affairs.  In Sweden (just one example), the family assets are split 50:50 in virtually all cases.  Such clarity makes the process both short and cost-eefective.  There is minimal loss of family resources and the strain on parents is minimised.  Changes in the Family Law in E&W are desperately needed but will meet huge resistance from the legal profession as they still see it as a significant part of their work and a big money spinner.  It is too late for me to benefit any changes in this law, but I appeal here for changes to be made as I am sure that it will be in the interests of many many families in the future.  I am also quite certain that it is also in the best interests of children to change family law so the process of divorce is less complicated, provides clarity of process, and so that divorce (in particular the process of splitting assets) is done with minimal of fuss and on a time scale that should take no longer than six months in all but the most complicated (or high value) of cases.

Repeal of Sections 11-17 of the Criminal Justice and Courts Services Act 2000 and Section 7 of the Childrens Act 1989: abolition of CAFCASS.

 

"I can hardly read the literature on Family Law without simultaneous feelings of an awful sadness and profound rage. Sadness at what has been done to our children and their families and deep rage for our Family Courts and the inadequate practitioners that work within it."
Sir Bob Geldhof, Forward to the Custody Minefield Report Report,  "Relocation and Leave to Remove", December 2009.
 
Many of these inadequate practitioners work for The Children and Family Court Advisory and Supervisory Service (CAFCASS). CAFCASS was established under Sections 11-17 of the Criminal Justice and Courts Services Act 2000. In private law they mainly provide reports under Section 7 of the Children's Act 1989, the welfare report. CAFCASS also took over the role of the Official Solicitor in representing children party to proceedings, as Legal Guardians, in mainly public and in some private law cases.
 
In private law, it is time to give up on Section 7 of the Children’s Act 1989 and abolish CAFCASS along with it. In private law proceedings, if there are matters raised which are sufficiently serious to warrant a welfare investigation, the case should be moved to public law with the local authority to carry out the investigation. The welfare investigation should then be made to the timescales and standards of a S.47 and Core Assessment (35 days). As an alternative, independent experts could be jointly instructed and paid for by parties or, when appropriate, through Legal Aid. It is a measure of the inadequacy of CAFCASS that in the vast majority of cases it would work out cheaper to pay £2,000 for a reliable report in four weeks than wait six to nine months for CAFCASS to produce an inadequate one. 
 
In public law, children would be better represented by people who know and understand them and can express their views, preferably drawn from their wider family or community and if necessary from the voluntary sector. It does not require the inadequate practitioners from a state service.  
 
There is no need for CAFCASS at all. 

Why is this idea important?

 

"I can hardly read the literature on Family Law without simultaneous feelings of an awful sadness and profound rage. Sadness at what has been done to our children and their families and deep rage for our Family Courts and the inadequate practitioners that work within it."
Sir Bob Geldhof, Forward to the Custody Minefield Report Report,  "Relocation and Leave to Remove", December 2009.
 
Many of these inadequate practitioners work for The Children and Family Court Advisory and Supervisory Service (CAFCASS). CAFCASS was established under Sections 11-17 of the Criminal Justice and Courts Services Act 2000. In private law they mainly provide reports under Section 7 of the Children's Act 1989, the welfare report. CAFCASS also took over the role of the Official Solicitor in representing children party to proceedings, as Legal Guardians, in mainly public and in some private law cases.
 
In private law, it is time to give up on Section 7 of the Children’s Act 1989 and abolish CAFCASS along with it. In private law proceedings, if there are matters raised which are sufficiently serious to warrant a welfare investigation, the case should be moved to public law with the local authority to carry out the investigation. The welfare investigation should then be made to the timescales and standards of a S.47 and Core Assessment (35 days). As an alternative, independent experts could be jointly instructed and paid for by parties or, when appropriate, through Legal Aid. It is a measure of the inadequacy of CAFCASS that in the vast majority of cases it would work out cheaper to pay £2,000 for a reliable report in four weeks than wait six to nine months for CAFCASS to produce an inadequate one. 
 
In public law, children would be better represented by people who know and understand them and can express their views, preferably drawn from their wider family or community and if necessary from the voluntary sector. It does not require the inadequate practitioners from a state service.  
 
There is no need for CAFCASS at all. 

Separate the executive from the legislature

Currently, the Cabinet sits in Parliament. This means that they can vote on what the laws are, and then put them into force, a gross violation of the separation of powers principle. The executive seems to dominate Parliament, and forces through laws we don't want, and appoints people only one constituency (if that) chose.

 

I am not proposing that the Prime Minister shouldn't come from the House of Commons. He can stay. But the rest, the ones that form his Cabinet – they should not be MPs or Peers.

 

Instead, we could emulate the American system. The Prime Minister would nominate someone to take up a role in Cabinet. Then that person should be vetted and approved by Parliament. The vetting would be a thorough Q&A session (or plural)  to assess the nominee's ability to do the job. Then a vote would be taken, and if the vote was lost, then the Prime Minister would have to find someone else to nominate.

Why is this idea important?

Currently, the Cabinet sits in Parliament. This means that they can vote on what the laws are, and then put them into force, a gross violation of the separation of powers principle. The executive seems to dominate Parliament, and forces through laws we don't want, and appoints people only one constituency (if that) chose.

 

I am not proposing that the Prime Minister shouldn't come from the House of Commons. He can stay. But the rest, the ones that form his Cabinet – they should not be MPs or Peers.

 

Instead, we could emulate the American system. The Prime Minister would nominate someone to take up a role in Cabinet. Then that person should be vetted and approved by Parliament. The vetting would be a thorough Q&A session (or plural)  to assess the nominee's ability to do the job. Then a vote would be taken, and if the vote was lost, then the Prime Minister would have to find someone else to nominate.

Children’s rights of access

The law current supports seperated parents' upsidedown ownership-based view of their children.

Establish in law that parents do not have right of access to children; rather that children have right of access to parents and that parents have a duty of responsibility to enable that access.

Why is this idea important?

The law current supports seperated parents' upsidedown ownership-based view of their children.

Establish in law that parents do not have right of access to children; rather that children have right of access to parents and that parents have a duty of responsibility to enable that access.