When people, usually parents, involve the courts in relation to their children, Cafcass are automatically involved. Initially, their role is akin to triaging cases to identify those where the children are potentially at risk and in which they need to become more involved. Cafacss are also involved in cases initiated by the Local Authority where their concerns for a child’s safety trigger legal action independently of the parents.
Children do not appear in court in cases that relate to them. Children younger than 12 can have their ‘apparent’ wishes and feelings taken into consideration, as reported to the court by Cafcass. Very often it is reported that children display a clear sense of loyalty to both parents and feel torn. After that age, they are considered (potentially) mature enough to able to express their views clearly enough for the court to place more weight on them but again this is always through the reports of the Cafcass officer. Conveying a child’s wishes and feelings, in such a highly sensitive court process, is as difficult as it sounds.
It is widely considered by many judges and lawyers that hearing from children directly in cases would provide them with the voice that some crave, unfiltered by other professionals. Many children feel excluded from cases that will affect their lives fundamentally. Some argue that this exclusion may be seen as a breach of their human rights.
Since 2010 a working group of senior judges had investigated how it might be possible for children to be heard in court cases. Liberal Democrat Simon Hughes, who was then Justice Minister, promised to change government policy. But earlier this year the Ministry of Justice admitted that the plan had been shelved.
In a recent interview with the BBC’s Today programme on Radio 4, Lord Justice Jackson discussed allowing some children to meet the judge. He was clear that it would not be suitable for all children. Indeed, all cases involving children have focused always on the child, and if meeting the judge would be harmful, it should not happen:
The phrase ‘domestic abuse’ is very widely defined and is not limited to physical abuse. It can include psychological, social, financial or emotional abuse and includes forced marriages or abandonment, coercive and/or controlling behaviour and ill treatment.
The Court will consider any form of domestic abuse as being potentially harmful to the child and/or where it puts a child at the risk of harm. This can include not only domestic violence directed at the child, but circumstances where the child witnesses one or both of their parents being violent or abusive to the other.
Children may also suffer direct physical or psychological and/or emotional harm living with parents who have a history of domestic abuse.
The Family Court will seek to identify any such issues at the outset of proceedings and ensure that any application made under the Children Act 1989 by a parent is conducted in such a manner as to ensure that a child is safe from exposure to such abuse.
The Court will typically not make any order before an initial ‘Welfare Report’ has been carried out. This is usually done by the reporter speaking to both parents and checking for any criminal record or past involvement of Social Services.
In the case of Hart v Hart, His Honour Judge Wildblood QC awarded Karen Hart just £3.5m out of the total assets amounting to just under £9.4m in a financial remedy order made in June 2015. This unusual ruling wasn’t as a result of a ‘short, sharp’ marriage as documented previously, as the couple’s marriage spanned 23 years.
Karen Hart’s solicitor said the settlement 'should have been based on an equal sharing of the assets they created between them during this time', and the recent ruling 'leaves the law in a state of flux. It allows a trial judge to find that even where it is not properly evidenced, the financial contribution of one spouse outweighs the family and domestic contribution of the other. This can lead to a result that is unfair and discriminatory, as it has done in this case. More such results are likely to follow, with the potential to set the law back more than 20 years'.
Regardless of whether this latest ruling will indeed set a precedent for financial remedy cases moving forward, it will no doubt make couples who are looking to wed in the near future think about their financial assets, and how best to allocate them should the worst occur by drafting up a prenuptial agreement.
Mrs Owens originally petitioned for divorce against her husband of 37 years on the basis of his unreasonable behaviour. Under the law in England and Wales, a petition on this basis is one of only two ways separating couples can commence divorce proceedings immediately. Mr Owens defended the proceedings which in itself is somewhat unusual.
Multiple court hearings have since followed and the court have found, to date, that the examples of unreasonable behaviour Mrs Owens included within her divorce petition are not enough to satisfy the threshold, trapping her in what she calls “a loveless marriage”. The Court of Appeal found that "Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be."
There is current debate surrounding whether there should be legislation to allow separating couples to divorce immediately on a ‘no fault basis’. The idea is that this would enable couples to engage in the divorce process on a more amicable, less confrontational basis and would hopefully avoid the type of litigation Mr & Mrs Owens have had to endure.
The case demonstrates that it is vital to seek legal advice at the outset of separation to ensure that unnecessary, costly and stressful litigation can be avoided.