Lost Bills, child protection and deceit: The last week in family law

Two important family law Bills have been lost, as a result of the calling of a General Election. The Domestic Abuse Bill was to introduce a comprehensive package of measures to tackle domestic abuse, including provisions prohibiting the cross-examination in court of an abuse victim by the alleged perpetrator of the abuse. The Divorce, Dissolution and Separation Bill, was to bring in a system of no-fault divorce. Both Bills failed to complete their passage through Parliament before it was dissolved for the election. The Bills will not be carried over to the next session of Parliament, so will have to be re-introduced by the new government, and started over again from scratch, if they are to become law. Referring to the Domestic Abuse Bill Law Society president Simon Davis said: “Whoever the next government may be, we hope they will bring forward measures to prevent cross-examination by alleged abusers in the family courts. Not only does this form of cross-examination repeat the trauma for the victims, but it also allows the perpetrator to use the court process to perpetuate the abuse.”

A rise in family conflict and hardship is behind the
heightened pressure on child protection services, according to a new survey of
councillors responsible for children’s social care by the Local Government
Association (‘LGA’). Councils have seen a 53 per cent increase in children on
child protection plans – an additional 18,160 children – in the past decade,
while 88 children are now taken into care every day to keep them safe. In an
LGA poll of children’s services of lead councillors, more than 80 per cent said
problems like domestic violence, substance misuse and offending were behind the
rise in their area, while 70 per cent said that poverty, poor housing and debt
played a part. The LGA is calling for children’s services to be fully funded
alongside investment in services which prevent children reaching that point in
the first place and help families to stay together and thrive. Councillor
Judith Blake, Chair of the LGA’s Children and Young People Board, said:
“Councils want to make sure that children can get the best, rather than just
get by. Yet, funding pressures are coinciding with huge increases in demand for
support because of problems like hardship and family conflict, which is making
it increasingly difficult for them to do that. No family is immune to life’s
challenges, and every family should feel safe in the knowledge that if they
need it, help is there to get things back on track. If councils are to give
children and families they help they need and deserve, it is vital they are
fully funded. This is not just children’s services, but the breadth of support
councils can provide, from public health to housing. This extra funding will
help but it is just one year. However councils need long-term, sufficient and
sustainable funding so they can deliver the best for our children and
families.”

And finally, the High Court has ruled that the tort of
deceit can exist between a husband and a wife. The ruling was made in a case
involving a husband’s claim for damages in respect of his wife’s deceit over
the paternity of a child who, she had said, was his. The parties married in
2003 and the child was born several years later. The marriage broke down and
the parties separated in 2017, after which divorce and financial remedy
proceedings were issued. A final hearing of the financial remedy proceedings is
due to begin in January. In 2018 the child was subject to a DNA test, which
revealed that the husband was not the child’s biological father. The husband
then issued his deceit claim, in the Queen’s Bench Division. The claim was
transferred to the Family Division by Master Cook, who raised the question of what
the action could achieve, given the remedies sought and the nature of the
proceedings already underway in the Family Division, and said that this was “arguably
pointless and futile litigation”. The wife applied to have the claim struck
out. Hearing that application, Mr Justice Cohen could “see no logical reason
why the law should encourage honesty between unmarried couples so as to create
an obligation which if breached opens the wrongdoer to an action to deceit yet
absolves from such liability a wrongdoing spouse.” Nevertheless, he still
struck the claim out, finding that it was fundamentally incompatible with, and
amounted to an improper collateral attack on, the Court’s jurisdiction with
regard to the financial remedy proceedings.