Family Law Reform Now Conference

Arrangements for children when parents live apart are governed by the Children Act 1989. This Act is still widely regarded as a successful piece of legislation, but 30 years on it remains focused on children’s welfare through the paramountcy principle (s1(1)), rather than any explicit acknowledgment of children’s rights, particularly in the private family law context.  No formal assessment of how well the 1989 Act guarantees the rights accorded children under article 12 of the United Nations Convention on the Rights of the Child (UNCRC) has been undertaken. Given recent developments, it is suggested that this is a critical moment for the Law Commission to examine whether the 1989 Act adequately protects the rights and facilitates the voice of the child in private law child arrangement disputes in processes both in and out of court, as envisaged by art. 12 UNCRC.  Such a review would be particularly timely given recent family law developments which have resulted in i) strong encouragement of out of court dispute resolution (particularly mediation) in child arrangement cases in England and Wales post-LASPO, where children have little or no agency; ii) the repeal of s41 Matrimonial Causes Act 1973 and the loss of any requirement for the court to consider the proposed arrangements for children on divorce; iii) developments internationally to promote children’s rights through the UNCRC and which the UK has ratified; and iv) the move in other UK nations to adopt the UNCRC principles in domestic legislation, potentially leaving children in England with fewer rights than their counterparts in Wales and Scotland.

The Family Solutions Group (FSG) report (2020) What about me? has also called for a reframing of support for families following parental separation. In particular, it is looking to realise holistic support which ensures that children’s voices are facilitated and heard not only in court but also in out of court processes, where many child arrangements are agreed between parents with, in reality, little heed to children’s wishes and feelings or indeed even the Children Act welfare threshold in some situations.

It is suggested that there is a critical role for the Law Commission to play in scoping out whether England needs a children rights framework to protect children’s welfare in the new family justice landscape. We therefore also suggest that now is an appropriate moment to consult on whether the UNCRC should be formally adopted into the law of England and Wales, to ensure that the position for children following parental separation is safeguarded and their voice in family dispute resolution processes, whether in or out of court, is appropriately facilitated.

Professor Anne Barlow and Dr Jan Ewing

In its thirteenth programme of law reform the Law Commission noted that ‘[t]he registration of births in England and Wales … dates from the introduction of civil registration in 1836.’ It added that  ‘the law only allows the registration of two (legal rather than biological …) parents, and requires children to be registered as either male or female.’ Despite considerable changes to the way in which families are formed in contemporary society, the Commission agreed with Bainham (Andrew Bainham ‘What is the point of birth registration?’ [2008] 20(4) CFLQ 449) that the principles for birth registration had never been examined comprehensively and coherently (Law Com No 377 (2017), para 4.4 – 4.5). The increased use of donor gametes in conception and surrogates in gestation has now been joined by the possibility of men giving birth (R  (McConnell And  YY)  v  Registrar  General  And Others [2020] EWCA Civ 559) and wishing to be registered as his child’s father (or alternatively parent) rather than mother. In all of these new ways of forming families, complex questions about parentage have arisen. In our proposal we reflect on the choices implicit in our current system of birth registration and the impact of these choices on LGBTQ+ families in particular.

Dr Philip Bremner, Dr Craig Lind and Dr Maria Moscati   

The legal framework for information about origins in assisted reproduction requires reform. Assisted reproductive technologies offer opportunities for family formation, but such technologies challenge traditional conceptions of legal parenthood, because genetic, gestational, and social parenthood are separated.

This separation leads to questions regarding how information about genetic, gestational, and social origins should be managed by the State regarding both: (a) the collection of information, and (b) access to information. Currently, there is inconsistency within the law regarding origin information in gamete donation and surrogacy, for which there is no apparent policy justification. Moreover, novel assisted reproduction techniques - including in-vitro gametogenesis, mitochondrial replacement therapy, ectogenesis and uterus/ovary transplants - raise even more challenging questions. For example, in-vitro gametogenesis allows for the creation of gametes from skin or blood cells, meaning that a child conceived with such techniques may not have two genetic parents and mitochondrial donation results in offspring that have genetic connections to three individuals.

Proposals for reform under strand (a) will discuss which information should be collected, but also how it should be collected. It will make proposals about whether origin information should include details of surrogates, gamete donors, womb/ovary donors, mitochondrial donors, and/or half siblings and the most appropriate bodies for the collection and retention of this information. Proposals under strand (b) will discuss whether, when and how this information could be accessed by those affected. This will include proposals about who should control the release of information and the manner in which it should be done.

Dr Alan Brown and Dr Katherine Wade

The 21^st century has been characterised by systematic social changes to the family unit and legal reforms aimed at regulating and protecting those within it. Many of these shifts in ‘familial landscape’ would have appeared ‘radical’ at the start of the 20^th century. Such changes include recognition of and protection from domestic abuse, increasing emphasis on the need to place equal value upon the gender roles of men and women within the context of child welfare, especially in the wake of COVID-19. Most of this reform has centred around the ‘nuclear’ family, however, rather than the extended family such as grandparents. This is even though grandparents have increasingly had a prominent role in 21^st century family life due to longer lifespans, working mothers and as the providers of moral and practical support in single-parent families. Grandparents can thus be viewed either as ‘replacement’ figures for parents or as a valuable form of support for parents and/or children.

There has been conversation, from the academic community, non-governmental organisations and successive governments over the last decade, concerning the role of grandparents in children’s lives. Such discussion includes consideration of whether there is the need for improved protection of the grandchild/grandparent relationship via legislative reform or ‘soft law’ guidance. Such academic excavation into the array of options has included the consideration of a legal presumption in favour of contact, the removal of a leave requirement and greater ease in obtaining legal funding and financial support (the latter being appropriate where grandparents become carers for children, with or without the explicit support of Children’s Services and/or approval of birth parents).

This chapter will explore the matter in a more comprehensive manner and consider whether it is time for legal reform to reflect the diversity in family units, specifically the importance of the role of grandparents, via a ‘Grandparent’ Act, substantial reform to the public and private law regimes provided within the Children Act 1989 or an amendment or ‘granny annex’ which reflects greater ‘inclusivity’ of extended family members, namely grandparents. It is time to acknowledge the importance of the role of grandparents (and other kinship carers) and consider the ways in which the grandparent/grandchild relationship, in its myriad of forms, may be best protected via legal reform. This chapter will take a ‘holistic’ approach covering both private and public law matters and both procedural and substantive matters, with a focus on the grandparent/grandchild relationship, rather than the rights of grandparents per se. Greater protection can be provided to grandparents and grandchildren via the development of an ‘inclusive’ legal framework within the Children Act 1989 which modifies the language of ‘decision-making’ (including the welfare checklist) and substantive orders (such as a parental responsibility order).

Dr Samantha Davey

The Legal Aid Sentencing and Punishment of Offenders Act 2012 removed from the scope of public funding access to a lawyer in family matters arising from individual decision making. This included matters where the state was not involved, keeping only cases which sit close to the criminal law ie domestic abuse and child protection cases where the state has a clear interest in protecting the citizen. But family matters are not clear cut. A difficult contact dispute between separated parents may well include elements of abuse such as coercive control which are hard for the layman to work with. Women and children may not be safe without access to legal help.

We propose to change the criteria for access to publicly funded legal help to include all contested matters where there is a safeguarding question about the children, and to ease the means test for access by excluding inaccessible capital assets such as a house bought on a mortgage in joint names.

The legal support provided should include face to face provision by a solicitor of information, written advice, and support in taking the next steps. Mediation would be able to play a larger part if the mediators who are also practising lawyers were enabled to offer this kind of support.

Professor Mavis Maclean

The financial consequences of divorce is an area in urgent need of reform. However, reforming this area is complex, and providing a clear basis for reform must not mean compromising the concepts of equality and fairness that are important when determining financial remedies. As a result, it could be useful to explore alternatives by shifting attention away from the point of separation. One potential route to reform could be to review the rules for determining property ownership during marriage. The Law Commission’s 1988 proposals could provide an interesting launchpad for further research into the matter, obviously bearing in mind that the socio, legal, economic, and political context of family life is different in 2021. As the Law Commission made clear previously, the intention of such reform would not be to undermine party autonomy, but to facilitate it by reflecting the reality of how parties manage property during the relationship.

This would neither cure all the current problems with this area of law nor negate the need for reform of the financial consequences of divorce. Indeed, the road to comprehensive reform of this area is likely to be a lengthy and sinuous process. However, a new law of family property, that provides clearly defined rights during the marriage could be beneficial. It could potentially resolve (or at least alleviate) some disputes over property that could otherwise become intractable on relationship breakdown. It would encourage transparency, clarify property ownership during the relationship, reflect parties’ expectations and reduce uncertainty on divorce. In other words, a clear understanding of who owns what during marriage could be beneficial when redistributing assets on divorce. In the context of legal aid cuts and out of court settlements, couples need to be able to bargain in the shadow of the law effectively, and arguably should not have to wait until relationship breakdown to understand questions of property entitlement. The clarity such reform could provide could also provide justification for legislative reform of marital property agreements, whereby parties wishing to depart from rules of co-ownership could do so by private agreement. However, reform of such agreements without consideration of these broader reform proposals would be a missed opportunity to clarify questions of property ownership throughout the relationship; questions that couples entering marital property agreements will need to know the answers to in order to make informed decisions over how to distribute their assets.

Dr Sharon Thompson

The aim of my proposed reform of financial provision on divorce is to bring English/Welsh law into line with the principles of the law in Scotland, most of W. Europe, N. America, Australia (online calculations - https://www.familyproperty.com.au/) and New Zealand, namely, a law that would be more certain, with fairer principles, minimising judicial discretion. It would provide for prenuptial agreements, equal division of matrimonial property, limited spousal support, and extended support for children up to 21. That should serve to save legal costs, preserve assets for the children and assist settlement. It would also bring financial provision law into harmony with the new no-fault divorce law. If a new divorce law aims to minimise bitterness and stress, those elements should not remain in financial provision law. The current law has not been reviewed for 50 years, during which time the statutory provisions have almost vanished under layers of judicial discretion and changes of direction, which have exacerbated uncertainty and expense. There are also changes in society in relation to the status of women and family relationships that need to be reflected, as they have been in so many other jurisdictions. The arguments against this reform, namely that the financial position of women in England is weak, is not borne out by relative statistics. It is a reform that would be welcomed by the public. The Law Commission prepared prenuptial agreements reform in 2014, and were on their way to overhauling financial provision as well, but could not see a way forward. This we can provide.

Baroness Ruth Deech

Drawing upon and developing my book, Religion and marriage law: The need for reform, this presentation argues that the law regulating intimate adult relationships is currently archaic, overly-complex and discriminatory, especially in how it applies to religion or belief organisations.  It argues the need for a new legislative framework – the Intimate Adult Relationships Bill – which would consolidate, modernise and reform the current legal framework.

This would include moving from a system that regulates buildings to one that regulates officiants, as recommended by the Law Commission’s review of weddings law.  This would remove current legal requirements that indirectly discriminate against some religions by mandating that religious marriages must take place in a place of worship in order to become legally binding. It would also enable wedding ceremonies conducted by belief organisations such as Humanists UK and independent celebrants to be legally binding for the first time. However, unlike the Law Commission, I propose that the nominating organisation would not be limited to religion or belief organisations.

These changes would still be insufficient since there would still be some unregistered religious marriages – and some of these would not result from a voluntary and witting choice by both of the parties. This would be remedied by providing an opt-out system of cohabitation rights on separation allowing ex-cohabitants to seek a financial order where they have suffered a financial detriment.  The Intimate Adult Relationships Bill would therefore not only regulate formalised adult relationships but would also provide some recognition of functional relationships.

Professor Russell Sandberg

Akhter v Khan (2018) and AG v Akhter and Khan (2020) once again highlighted the lack of family law protections for those in non-legally binding religious-only marriages, even if they had a reasonable expectation that their religious ceremony of marriage would be followed by a legal one. The Court of Appeal rejected Williams J’s avowedly creative approach to the provisions of the MCA and reinstated the established legal position, stripping Ms Akhter of a right to financial remedies and classifying the marriage as a ‘non-qualifying ceremony’. While the Law Commission’s proposals for weddings law reform would confer protection on those who believed themselves to be legally married, their view was that alternative solutions would need to be found for those who knew this not to be the case.

So where can such parties find a solution of their quandary? This proposal argues for a reinstatement of the action for ‘breach of promise to marry’ for parties who are promised a legally binding ceremony which is then not fulfilled. This action enabled damages to be awarded, and there are examples of it being used by women in religious-only marriages from the late nineteenth century to shortly before its abolition in 1970. Damages can be expected to reflect the financial remedy the party might have expected upon divorce, had the parties entered a legally binding ceremony.

Dr Rajnaara Akhtar and Professor Rebecca Probert

Cohabitation is the fastest growing family form in the United Kingdom. Couples are choosing not to formalise their relationships for a variety of different reasons. However, following relationship breakdown cohabitants cannot benefit from the structured judicial discretion available to spouses and civil partnerships and must have any entitlement determined using general principles of property, trusts, and contract law. This antiquated framework creates the potential for relationship-generated disadvantage, which is a problem exacerbated by the prevalence of the erroneous belief among the population that simply living together generates legal protections (the so called ‘common law marriage myth’).

The project aims to reignite interest in increasing the level of protections afforded to cohabitants upon relationship breakdown in England and Wales. This important issue was previously reviewed by the Law Commission in 2002 in their Sharing Homes project and later in 2007 culminating in their more comprehensive report, Cohabitation: The financial consequences of relationship breakdown. However, no meaningful change has materialised. This project offers a timely opportunity to revisit reform potential in this area with a specific focus placed on various frameworks that could be adopted in England and Wales. Drawing upon comparative law insights, the Law Commission should consider a range of different legal responses to cohabitation ranging from a compensation-style claim akin to the Scottish and Irish systems or a de facto regime operating in a more automatic fashion similar to those used in Canada, Australia and New Zealand.

Dr Andrew Hayward