Weekly Family Law Update June 18, 2021

Domestic abuse, court recovery and marriage age

Judge criticised for outdated attitudes to abuse

A District Judge has been criticised for having “outdated attitudes” to the issue of domestic abuse, in a case concerning a dispute between parents over the father’s contact with his child.

The mother in the case had made various allegations of abuse against the father, and the court had fixed a fact-finding hearing, to establish the truth of the allegations. The District Judge dismissed the allegations, and the mother appealed, to the Circuit Judge.

The Circuit Judge found that the District Judge had used incorrect and outdated principles, and had failed to recognise conduct which constituted abuse.

The District Judge’s failures included applying criminal principles in his consideration of alleged physical abuse of the mother; considering violence to be a more serious form of abuse than other forms of abuse; allowing the father to cross-examine the mother; and restricting the number of allegations that the mother could present.

In the circumstances the mother’s appeal was allowed, and the District Judge’s order was set aside. It was also directed that the fact-finding should be reheard, before a different judge.

New consultation on family court recovery after pandemic

The President of the Family Division Sir Andrew McFarlane has announced a two-week rapid consultation on remote, hybrid and in-person hearings in the family justice system.

This research is the third such survey and comes 15 months after remote hearings were first put in place at the start of the COVID-19 pandemic.

The research will once again be undertaken by the Nuffield Family Justice Observatory (‘NFJO’), an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system.

This third survey will focus specifically on recovery, identifying good practice from remote and hybrid hearings and providing an evidence base to assist with the decisions regarding future ways of working, as we return to court.

The NFJO will seek to gather evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers.

The NFJO said:

“During 2020, we carried out two rapid consultations on the impact of remote hearings in the family court. These informed discussion and guidance about how the family courts should work as the pandemic continued. Now that social distancing restrictions are starting to be relaxed, we have been asked by the President of the Family Division to undertake a further rapid consultation to glean insights that will inform how the courts should operate during the ‘recovery’ period.”

Minimum legal age of marriage to rise to 18

The government has pledged to raise the minimum legal age of marriage to 18 in England and Wales.

Currently 16 and 17-year olds can marry if they have parental consent, but campaigners have warned that this is being exploited to coerce young people into child marriage.

Last Thursday justice minister Lord Wolfson wrote to the campaigners saying:

“The government supports raising the legal age for marriage in England and Wales to protect vulnerable children living here.

“[It is] committed to making sure children and young people are both protected and supported as they grow and develop in order to maximise their potential life chances. This includes having the opportunity to remain in education or training until they reach the age of 18.

“Child marriage and having children too early in life can deprive them of these important life chances.”

Meanwhile, former Home Secretary Sajid Javid MP has said that he will introduce a private member’s bill this week making it illegal for under-18s to marry.