Brexit, Cafcass and court fees: The last week in family law

The association of family lawyers Resolution has warned that the stress of Brexit is adding to pressure on couples on the brink of divorce. Resolution Chair Nigel Shepherd said: “We have come across a number of families in this country [who are splitting up] because one them voted differently [to the other] in the referendum. They fell out in a big way because one voted for remain and one for leave. I suspect that was unlikely to have been the sole reason [for divorce] but we have heard of cases from a number of our members. It was a really divisive campaign. It pushed some couples [over the edge]. It was the last straw that made them think ‘we are really incompatible’.”

The latest figures for care applications and private law demand, for October 2016, have been published by the Children and Family Court Advisory and Support Service, Cafcass. In that month the service received a total of 1,141 care applications, which is a 5% increase compared to those received in October 2015. As to private law demand, Cafcass received a total of 3,505 new private law cases, which is a 9% increase on October 2015 levels.

The Government has rejected the recommendation of the House of Commons Justice Committee that the increase in the divorce petition fee to £550 should be rescinded. In a response to the Committee’s recommendations concerning court and tribunal fees, the Ministry of Justice said: “The new fee of £550 for a divorce came into effect on 21 March. Although it is too soon to draw any firm conclusions, there is no evidence so far that the fee increase has led to a fall in applications for a divorce. We are continuing to monitor the position carefully. Overall, we believe that the fee for a divorce is reasonable when considered against the objectives, generating an estimated £12 million per annum in additional fee income as a contribution to the savings required to make sure that the courts and tribunals are properly funded, and that access to justice is protected.” Bob Neill MP, Chair of the Justice Committee, said: “It is disappointing that the Government Response is so negative in respect of the Justice Committee’s recommendations; perhaps more concerning is that it is almost offensively perfunctory, appearing to have been rushed out at short notice and giving little evidence of attention paid to the Committee’s detailed evidence and analysis. This is all the more surprising given that Government has had more than four months to produce this reply. I therefore intend to raise this matter and possible further steps with the Committee at our next meeting.”

The High Court has held that a pension sharing order cannot be made in relation to a foreign pension. In the case Goyal v Goyal the wife had sought a share of a pension that the husband held in India. However, Mr Justice Mostyn held that pension sharing is not available in relation to any foreign pension. He said that the parties could agree to obtain an order in a foreign jurisdiction to split a pension in that foreign country. However, before approving such an arrangement the English court must be satisfied that the foreign pension provider will give effect to the deal.

And finally, the Court of Appeal has upheld a decision to take a four-year-old girl into care, on the grounds that her long-term emotional health and life chances were threatened by her mother’s inability to control her behaviour. The girl was placed for adoption in August after a family court found that her mother was incapable of providing adequate parenting or setting boundaries. The Court of Appeal heard that the girl showed extremely challenging behaviour, was at times aggressive and disrespectful towards her mother, did not trust her, failed to respond to her attempts to control her, and used inappropriate language. Although the mother accepted that she had failed to set boundaries and protect her daughter from emotional harm in the past, her lawyers argued that her parenting had improved and that the girl was no longer at risk of suffering significant harm in her care. However, the Court of Appeal ruled that the order was justified, and that it was essential that the girl was taken into care in order to repair the emotional harm she had suffered.