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Does Family Law shape society or vice versa?

Date: May 12, 2011

Good evening and thank you for inviting me to address this most eclectic and interesting gathering. It is described as a “conversation” and the point is to have just that. So my talk will ask questions along the way which I hope might stimulate discussion and prevent early evening dozing.

I was asked originally to talk about the recent developments in family law but I am afraid I skewed the question into one which I have become increasingly interested in and concerned about.

So the question I posed for discussion to CARE some months ago is “Does Family Law shape society or vice versa?” The answer to both potential questions, of course, is “yes, it does or they do to some extent”. So, having answered the two possible questions shortly you may want to move on straightaway to the finger buffet and drinks. The reason I answer the questions in that somewhat peremptory way is that, actually thinking about it, I have been convinced that it is not really the right question to ask at all.

The better question is “Should family law shape society or vice versa?”, but before answering that more profound question one might ask and answer this preliminary question “does the question matter at all” and, consequently, “does the answer to the question matter?”.

Self evidently, I answer those two questions “yes, it is a very important question as indeed is the answer”. And I say that not just because I am engaged in the business of family law on a daily basis (and people always think that what they do is important).

So why does the question and the answer matter?

The answer is twofold.

Family Law deals with the regulation of substantially the whole field of people’s private lives. If that is not the most important aspect of their lives I do not know what is more important. It reaches deeply into everyone’s private lives, right into people’s homes. It regulates their relationships and the relationships they have with their children; especially of course when their relationships collapse. Criminal Law does of course also to some extent but the behaviour of the majority of people does not reach the standard where the criminal law is engaged unless they drive as badly as me.

Let me give you a bit more detail. In what we call the field of private family law (disputes between private individuals not directly engaging the state) the law governs the making and dissolution of marriage, civil partnerships and unmarried partnerships. There is of course no such thing as the common law marriage (a fiction much loved of the uninformed parts of the media) but because of the enormous increase in numbers of people living together unmarried, the law has had to try and manage and accommodate their somewhat tenuous property rights too. The determination of the property rights of partners and distribution of the assets and income of partners whether married or not is part of the staple diet of the family courts. And of course the determination of the partners rights in their capacity as parents of children.

These rights can engage even before a child is born and continue after the death of one or more of the parents. Property rights too can endure after death even if you have divorced or separated from your partner many years before death. So the whole field of private arrangements within the family is involved.

In what we call the public law field, family law is primarily engaged in child protection issues culminating, in the most serious cases (Baby P type cases) in the removal by the state (via local authorities and the courts) of children from their parents on a temporary or permanent basis . And in the most serious cases the adoption of children into stranger families without the consent of their parents. Since the abolition of the death penalty over 40 years ago I challenge anyone to find another area of law which has greater consequences for the lives of individuals both the parents and the children than that. Sending criminals to prison even for long periods is one thing. Permanently removing their children is on an altogether more serious scale of importance, you may think. So family law reaches widely and deeply.

The second reason why family law really matters is of course because nowadays the majority of people do experience the effect of family law either directly themselves or because a member of their extended family is involved in family breakdown or the ramifications of family breakdown, in one form or another. And if not experienced via their family they are likely as not to have experienced it through friends or work mates. The incidence of family breakdown (about which I have spoken on numerous occasions in the last few years) is so terribly high now that the way in which family law is shaped and managed has, I believe, a direct and profound impact on the private lives of huge numbers of the population.

I cannot resist giving you a few simple statistics because the scale of the problem is genuinely alarming and to illustrate the importance of the subject.

In private law cases, there has been a 35% increase on the figure of five years ago and last year the figure increased by 19% from 113,600 cases to 135,000 new cases. I emphasise new because of course many cases rumble on for years.

In public law cases there has been a 31% increase in the number of new applications in past two years. Just over 20,000 has increased to 26,000. That upsurge has to some extent been provoked by the reaction of local authorities to the Baby P case but that factor is not simply going to evaporate. Sadly, Baby P cases will continue to emerge regularly.

So the total number of NEW cases last year both public and private was 161,000. If we guess that there are, on average, at least two children involved in every case, that is over 320,000 children each year NEWLY caught up in the system. Is it alarmist to suggest that one could multiply that figure by, say, 10 to encompass all the children affected by the family justice system at any one time bearing in mind that when they reach the age of 17 they fall out of the other end of the system? That is over 3 million children and at least as many adults ie their parents. And that is only the children caught up and so recorded by the system and the statistics. How many thousands or even millions more are there who go unrecorded? So numerically the problem is at a very high number.

And the effect of family breakdown is very far and deeply reaching on the future development of children both emotionally and materially.

In this connection, consider the distinct question of marriage. In the recent Centre for Social Justice report “Every Family Matters” published in July 2009 the following appears:

“Married couples are far less likely to break up than couples who live together without getting married even after adjusting for the influence of such factors as income, age and education. Data shows that only 8 percent of married parents, compared to 43 percent of unmarried parents, had separated before their child’s fifth birthday. The empirical evidence….shows that intact marriages tend to provide more beneficial outcomes for adults and children than cohabitation or single parenthood. Children tend to do better in the areas of physical and emotional health, educational achievement, financial security and their ability to form their own future stable families….”

The Jubilee Centre published new research based on evidence of a sample of 30,000 families. It found that married couples are ten times more likely to stay together until a child’s sixteenth birthday than the children of unmarried couples.

You might think that unequivocal support for marriage therefore is not only a matter of morality or religious persuasion (if that approach offends you) but that it makes pragmatic common sense and is demonstrably in the public interest ie, it has the potential to save huge amounts of public money.

But as we know in Britain marriage is in decline and statistically at its lowest level ever although ironically the desire to live in stable lifelong partnerships remains the aspiration for the overwhelming majority for both sexes.

So when considering the implications of family law we need to ask the question, for example; “should family law support strongly the institution of marriage or should it just be left to find its own level ?” A very serious question I think. May be you would disagree?

So in short family law reaches right across society touching the lives of millions on a daily basis and profoundly affecting the most important and precious parts of their lives; viz their private lies. It raises and grapples with enormous questions of public morality and mores.

So the question of who and how these rights are shaped is, inevitably of profound importance to us all. And surely therefore we need to look closely at who is doing the law making (or perhaps more pertinently not doing the law making) and ask the question are they doing it right and if not should others have a go?

One of the odd things about family law is that everyone has a view about it shaped inevitably by their own experience. That is also because family law is an area where decisions are uniquely effected on the basis of what the court thinks is either fair (in the field of property rights) and/or what is in the best interests of children (in the field of child law) Everyone has a view as to whether it is fair that eg, Heather Mcartney got £26 million on her divorce from Paul after only was it 4, or seven, years and where frankly he was a very rich man before she came on the scene. Everyone has a view about their friends divorce. It was his fault or hers depending on private loyalties and the inevitably one sided version of events you were given . Everyone has a view about social workers applying to the court for care orders often even when in complete ignorance of the main facts).

Who then are the law makers ?

The answer is :

1. Parliament and

2 The Courts ie, the family judges in the higher courts; the High Court, the Court of Appeal and the Supreme Court ( what used to be called the House of Lords) . Family judges lower down tend not to make the law . They just try and understand it and apply it.

What have they been up to or not up to as the case may be?

1. Parliament

In the case of parliament the answer in the case of family law is precious little. The last time that divorce reform was looked at in this country was in respect of the reforms implemented at the beginning of 1971. These reforms were themselves the result of the Royal commissions which sat in 1950. It is both incredible and concerning, I think, that we have had no such high level inquiry since that 1950 Royal Commission which led eventually to the current legislation. In other words, as a community, we have not had a comprehensive look at the whole canvas of family life and family breakdown for nearly sixty years; more than two generations ago.

If we can agree about one thing this evening, surely it is that the world we inhabit today is not the same world as we inhabited in 1950, always assuming you inhabited the world at all in 1950. I only just did. Socially, society is unrecognisable. The norms of behaviour, the stigmas and the taboos have all changed or evaporated. And since family law is intended to regulate family life as it is lived now and not in the past, it follows that the current divorce law and law relating to unmarried partners is no longer, I suggest, fit for purpose. It was designed in a wholly different era to deal with a different way of life. In the immortal words of John Cleese in the Monty Python series, it is a dead parrot. It is no more, it has gone to meet its maker.

We need a fresh look by an independent non political commission. Why an independent Commission? Because it has to be completely non- political, independent and authoritative. This is not the stuff of a page or two in a party political manifesto. Nor is this a time for blaming one or other political grouping for past failures, real or invented. No doubt the legislators did what they thought was right at the time. Indeed by comparison with previous laws, the changes introduced in 1970 were radical, especially the new law dealing with capital payments and division of marital property.

No political party, by itself, has the will to make the changes because any change will attract flack from one quarter or another, or may be all four simultaneously. And everyone has a point of view and an agenda. Despite brave attempts and good intentions government has shrunk from reforming both the law of divorce and cohabitation; it is simply too hot to handle and very consuming of parliamentary time.

And it is a complex and sensitive area with complex and interwoven causes and effects.

Divorce reform is long overdue for attention by parliament. They need to put their minds to these issues, don’t you think?

The last Conservative government had a go at it in the last decade of the last century. They introduced a well thought out attempt at divorce reform called the Family Law Act 1996 . It had many good ingredients but by the time everyone had had a go at it on the floor of the House of Commons it had become so mangled that it was kicked into the long grass and left to rot as part of the sweep up before the 1997 election. The innovative plans to introduce pre divorce information sessions were decidedly on the right track and need revisiting now.

Ditto the attempts at reforming the law relating to the rights of the unmarried partners. When it too hit the flack it was also sidelined whilst the results of studies in Scotland were gathered and considered. Result; it has disappeared off the radar and shows no sign of emerging. Despite my strong views about the importance of promoting marriage I nonetheless know through experience that this unreformed area of the law is very harsh and unfair on unmarried woman especially mothers. I know my boss, the President of the FD has grave concerns about the inadequacy of this area of law too.

And Coalition government will never tackle this stuff.

I suggest we urgently need proper, reasoned, research based and informed, grown up discussion about this huge and vital area of national life.

The Family Justice Review set up a year ago has just delivered its interim report. But it is concerned with money saving procedures not principles.

In the field of child law we have had two good pieces of legislation; the Children Act 1989 and the Adoption and Children Act 2002. But child law is much less politically controversial.

The Civil Partnerships legislation simply imported the out of date legislation on divorce into same sex relationships. And anyway those rights apply to a tiny minority. So nothing new in that legislation either.

The result of this ducking of the unpleasant by the legislature is of course that all important changes to family law property rights have been created, fashioned and introduced by the courts and judges largely unnoticed by the general public.

Let me look at that more closely in the context of the question who is now making and who is following the law.

2.The Courts and Judges

As I have said the law relating to divorce and property rights finds its genesis in the law reforms of the 1970 legislation. That allowed for the dissolution of marriage on 5 bases which supported the single ground of divorce viz. that the marriage had broken down irretrievably . The Act led to a flood of new cases and the courts had to cope with the flood. The idea of defended divorce; one party saying that the marriage had not broken down in the teeth of a determined applicant for divorce quickly evaporated. Undefended divorce became very quick and simple and cheap. The Court procedure quickly followed suit.

Until 1977, to obtain a divorce a public hearing was still necessary. It may not have been lengthy but it still, symbolically at least, sent a message that divorce (like marriage) was a public matter; the ordeal of the court room had to be faced. In 1977 an unnoticed, non-statutory procedural change, introduced into the process to save time and so money, reduced divorce to a simple form-filling exercise and no attendance at court of any kind is now required or has been 33 years. The public act and face of divorce has gone.

If the message that divorce/separation is easy has become common currency it is, of course, totally misconceived. Divorce and separation are never easy. They are no easier now than they have ever been. The legal formalities may have been simplified but the pain and suffering caused by it, to all the participants, are as awful and scarring as ever. And they can last a lifetime and beyond.

This simple procedural change produced a change in the attitude to divorce not by the courts or parliament, but by the stroke of a minister’s pen. No parliamentary or judicial scrutiny of the effects intended or unintended. Some might say this almost unnoticed change has had a more profound impact on the average person’s attitude to divorce than any new act of parliament.

Is that the right way for society to deal with these important matters, what do you think?

Consider also the property rights of spouses on divorce. The way in which a society accords rights to women on break up of marriage goes to the very heart of the way in which society views and values women and their rights. The 1970 reforms led to a sea change in the approach to claims by wives to a share of the matrimonial spoils. In 1984 the law was changed again to ensure that the courts put the interests of children at the top of the agenda of considerations when dividing up the proceeds of a marriage. But otherwise, as I say, parliament ie society has not considered the implications of these principles since 1950s.

Between 1970 (ie the date of the new law) and 2000 even absent any legislation, not a single case relating to the distribution of assets on divorce reached the House of Lords, the highest court, for decision. The House of Lords simply ducked the importance of this burgeoning area of law and refused to hear a case. So it was left to the lower court; the Court of Appeal. Via that court the law became badly out of date and the view of those of us who practised at the bar before 2000 was that the law had become out of step and manifestly unfair to long term wives, who were regularly departing long marriages with only a very modest share of the proceeds generated during the marriage. I acted for number of rich men in the 1990’s. They got away with it.

Eventually a west country farmers wife ( Mrs White) decided she had had enough and when she came to see me and told me it was just unfair what she had secured through the courts we decided to have a go at appealing . We had a triumph in the Court of appeal and she departed with 47 % of the value of the assets. We went out and celebrated a great success. But a few days later she decided I had let her down badly , I had not got her the full 50 % to which she aspired, and I was sacked when I told her I could not support her appeal to the House of Lords which I told her she had no chance of winning. . To cut a long story short she eventually found a barrister ( after sacking a few more along the way ) who would take her case and she got her hearing in that House.

This was the first time the House of Lords had looked at this immensely important piece of legislation since its implementation 30 years earlier. As I predicted, she did indeed lose the appeal but in the process she changed the law of England radically.

The House delivered judgments in White v White which heralded a wholly new approach to the 1970 Act. But not one family lawyer was in the House of Lords because until 2005 there were none in the House of Lords. Now we do have one and since last week a second; perhaps a belated recognition of this vital area of the law. Anyway their lordships came up with the simple notion that after a long marriage each party should start from a position of equality and depart with a half unless . . . . Any right thinking member of the public in his or her local pub would support that notion as a starting point. But ever since of course the devil has been in the detail. What when the marriage is eg, short or what when one party comes into the marriage with a lot of money either through their efforts or through inheritance ? What if this 50-50 approach leaves one of the parties with not enough to live on, What if one party has made a particularly huge contribution to the creation of the wealth through his or her celebrity status or in the period after the separation but before the divorce itself , sometimes a period of years etc, etc ? How do you adjust the 50-50approach in those not uncommon cases. I mention these exceptions to the rule because they have been hammered out by the courts in subsequent cases since White without reference to parliament in the last ten years and often decided without a family lawyer in sight.

More recently you will have heard of the Supreme Court decision called Radamacher v Granatino which involved the Supreme Court considering for the first time in a hundred years or so the social policy behind the enforcing of pre nuptial contracts; “prenups” as they are know. The Victorian judges outlawed these arrangements as being contrary to public policy. They thought that it was wholly undesirable that couples should be sorting out the consequences of their separation and divorce at the time of entering into what was, by definition, a life long arrangement. But the Supreme Court (9 judges but only one family lawyer) without reference to parliament much less a referendum decided that all that old law should be laid to rest. These agreements are now not outlawed and indeed will be recognised if they are not “unfair” whatever that means. Will these new animals become commonplace up and down the land ? I hope not.

“Fairness” ( the yardstick alighted upon by the Court) is a most elastic and flexible concept which changes over time and with the adjustment in social mores. What was fair in 1890 or 1950 is not necessarily thought to be fair today.

But is it the domain of a few senior judges to pronounce so decisively on these matters. Many of us who have been engaged at the coalface of family law for decades do not necessarily think so?

For “Fairness” lies at the root of all these finely balanced legal issues and battles and surely society, ie, parliament, should decide the basic parameters of this concept.

At the risk of sounding arrogant by quoting a speech I myself made now three years ago in 2008 let me touch the subject again. I said this rather directly to the government of the day when suggesting some bullet points for urgent reform:

“Finally “fairness. Face up to the need to reform the substantive law of divorce, financial ancillary relief and the law relating to cohabitants. Stop ducking the issue. Divorce law and ancillary relief law was last properly reformed two generations ago in the mid sixties when society was altogether different. The current laws are not suited to modern social mores or the way we live now. When the last major reform was introduced there was no such thing as cohabitation outside marriage. Now it is as common as marriage if not more so. In 2002 in Cowan and again last year in Chairman Lord Justice Thorpe in two long and careful judgments in the Court of Appeal called for urgent reform. There is simply no one in the land who has a greater wealth of experience in this field than him. His pleas have fallen on totally deaf ears twice.

Both these areas need urgent and in depth reform. The attempts by the House of Lords with White and Macfarlaneand more recently the Court of Appeal in Charman to put a new supercharged engine into the old chassis are imaginative and perhaps better than nothing. “Fairness” is what we are all asked to try and achieve. But what does Fairness mean in the context of the social and behavioural mores of 2008. Their Lordships have given us all plenty to chew on but enough is enough and their pronouncements are no substitute for new and proper, up to date law which is the product of the elected legislature and which meets all the needs of society as it now functions…………..

As Lord Justice Thorpe said in Cowan when talking about the need for reform: “It is for Parliament not the judges to take us there , however uninviting the terrain may appear to the government of the day.”

The judges can take the matter no further without making matters worse and more uncertain. Government simply has to grasp the nettle and get on with it. Surely, if enough parliamentary time has been found over the last decade to reform the law relating to the rights of minorities, it can be found to reform critically important laws affecting the rights of the majority?”

That is now three years ago. Nothing, needless to say has happened, changed or moved on.

This is a huge subject and I do not have time today to do it justice.

In the end I come back to the amended question and the unamended question “Who should shape the law in the field of private relations?”

We ( ie the courts ) doing our best to discern the changes in social mores incrementally as we live in this world, hear cases day by day and listen to watch or read the output from the media, or society itself via its elected representatives deciding on public policy not only now but for the future and after proper research?

I would suggest too much is being left to the courts in the face of legislative pusillanimity and inactivity. I do not mind expressing my views from the bench in court (indeed I rather enjoy grappling with the issues which ,of course, I pride myself that I am rather brilliant at determining ) but am I truly representative of all views young and old and it is, after all, only my view with which others may profoundly and rightly disagree. And I am increasingly uneasy about this process of reform by default and as time goes on.

In the end we are of course doing the classic British thing of reform by inertia, stealth, common sense and the laws of cricket . That may in the end not be too disturbing in fact but should these real changes happen by default and because of the inactivity of lazy politicians.

So my final answer is that Family Law does shape society, it is bound to, but the law in this field is in desperate need of comprehensive , root and branch overhaul after prospective ie, forward looking review of family policy by a non political grouping. It should not be left only to the courts to invent and fashion by retrospective review in the light of the mores apparently garnered from their own experience and the media.

I have gone on long enough . Do you agree? What do you all think?