Weekly Family Law Update March 16, 2021

Public law, finalising agreements and controlling behaviour

Investigation into rise in public law cases published

The President of the Family Division, Sir Andrew McFarlane, has welcomed and endorsed the publication of a report into the increase in public law children cases (i.e. children cases involving social services) by the President’s Public Law Working Group (‘PLWG’). The report made 47 recommendations, aimed at achieving best practice in the child protection and family justice systems.

The President explained: “The PLWG was formed, prior to the COVID-19 pandemic, to investigate the steep rise in public law cases coming to the Family Court, and to offer recommendations for improving the system’s ability to address the needs of the children and families at the centre of these important cases. The additional pressures on the Child Protection and Family Justice systems arising from COVID have only gone to underline the need for the new ways of working that the PLWG’s recommendations describe.”

He went on:

“It has been a striking feature of this work that the development of the group’s ideas and recommendations has been organic and has proceeded at each turn on the basis of agreement across the board, rather than controversy. That this is so, strongly suggests that the recommendations made are both sound and necessary. It gives ground for real optimism that the messages in this report will be welcomed by social workers, lawyers, judges, magistrates and court staff across England and Wales and that, after a short implementation period, they can be put into effect and begin to make a real difference on the ground. That is my earnest hope and confident expectation.”

Case illustrates importance of finalising agreements

A Family Court judgment published last week illustrates the importance of ensuring that any agreement upon division of finances on divorce is incorporated into a legally binding document.

In the case the parties separated in 2010. They had various jointly-owned assets, and in 2012 they entered into an agreement as to the division of those assets. However, no legal document was drawn up to ensure that the agreement was final.

Divorce proceedings were eventually commenced in 2019, and the wife claimed a further substantial sum from the husband, whose assets had increased considerably in value since 2012.

The couple then spent in excess of £500,000 on legal costs, arguing the wife’s claim. This led to the judge, Mr Justice Holman, commenting that an expenditure of “perhaps a few thousands of pounds of legal costs” on drawing up a legal agreement in 2012 “might well have saved and avoided the catastrophic expenditure of over £500,000 now.”

Review of controlling or coercive behaviour offence published

The Home Office has undertaken a review of the controlling or coercive behaviour offence, which was introduced in December 2015.

The stated aim of this new offence was to “close a gap in the law around patterns of coercive and controlling behaviour during a relationship between intimate partners, former partners who still live together, or family members”

The review considered the available criminal justice system data, academic literature, and engaged with stakeholders, to understand how offence has been used since its introduction.

The review found that volumes of recorded offences and prosecutions have increased year on year since the offence’s introduction, indicating that the legislation has provided an improved legal framework to tackle this type of abuse. However, the review also concludes that there is likely still room for improvement in understanding, identifying and evidencing controlling or coercive behaviour, as it is likely that only a small proportion of all controlling or coercive behaviour comes to the attention of the police or is recorded as controlling or coercive behaviour, and charge rates remain relatively low.