EU cooperation, court waiting rooms and child neglect: The last week in family law

A paper outlining the United Kingdom’s position on cross-border civil judicial cooperation in the future partnership with the European Union has been published by the Department for Exiting the European Union. Commenting on the paper, Daniel Eames, chair of Resolution’s International Committee, said: “We agree that close co-operation with the EU is vital on family law matters post-Brexit. This was a key recommendation arising from the Justice Select Committee’s enquiry, to which Resolution gave evidence late last year. As we said to the committee at the time, families benefit from rules which bring legal certainty, and limit the length and costs of proceedings in family law cases, for the benefit of children and their parents. Cross border family law for intra EU-UK cases – whether divorce, children or financial – requires reciprocity. Without reciprocal rules, there can be no legal certainty in treatment with all the ensuing complications, delays and potential costs for families and children or local authorities undertaking their child protection function.”

HM Courts & Tribunals Service (‘HMCTS’) has invested £80,000 in victim and witness waiting rooms in five courts across the country. The rooms are intended to make the experience of victims and witnesses easier by making a number of changes, including the addition of children’s toys. A press release from the Ministry of justice and HMCTS says that: “Research conducted with court users has shown that small changes such as these can make the court experience less intimidating for some of the 156,000 victims and witnesses who give evidence each year – particularly children and the vulnerable.”

A £10,000 damages award to a man with Down’s Syndrome over delays in the provision of sex education has been approved by the Court of Protection. In the case CH v A Metropolitan Council a 38-year-old man, ‘CH’, married his wife, ‘WH’, in 2010. The couple have since lived together in CH’s parent’s home. They enjoyed normal conjugal relations until March 2015, when a consultant psychologist concluded that CH lacked capacity to consent to sexual relationships, after the couple sought fertility treatment. WH was then told not to have sex with CH, because his lack of capacity to consent would mean she would be committing an offence. The consultant psychologist said CH needed a course of sex education to achieve the necessary capacity, but “for reasons that have never been satisfactorily explained, the local authority failed to implement that advice despite requests and protracted correspondence”. CH’s sister then obtained an order from the Court of Protection and the course finally began in June 2016, and was successfully completed with the couple resuming normal relations in May 2017. Judge Sir Mark Hedley said: “This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship. In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”

And finally, the National Society for the Prevention of Cruelty to Children (‘NSPCC’) has reported that it received 19,448 reports of child neglect in 2016-17, compared with 12,110 in 2011-12 – a 61% increase, with nearly nine in 10 calls proving serious enough to be referred to social services or the police. The charity said a growing number of callers were concerned about children, some under the age of five, being left at home unsupervised by parents struggling with alcohol and drug use. However, it warned the true scale of the problem could be “much greater”, and urged the government to commission a national study to measure the extent of the problem. NSPCC chief executive, Peter Wanless, said: “Neglect can have severe and long-lasting consequences for children, and can also be an indicator of other forms of abuse … It is vital we understand the true nature and scale of child neglect in the UK so we can collectively tackle the fundamental causes. Therefore, a government-commissioned, nationwide prevalence study on child abuse and neglect needs to be conducted, and sooner rather than later.”