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.
Mr and Mrs Sharp were married for four years. They had no children together and both worked full-time earning approximately £100,000 per year each. Mrs Sharp, however, did receive significant bonuses amounting to over £10 million during the marriage. Throughout the course of their marriage, the couple kept their finances separate, although they did purchase property together and shared in the costs of acquiring and refurbishing those properties.
Upon Mrs Sharp finding out Mr Sharp was having an affair in 2013, she issued divorce proceedings and the financial elements of those proceedings were initially determined by the court in November 2015. The Judge decided that Mr Sharp was entitled to exactly half of the matrimonial pot, which amounted to £2.75 million. This decision was very much in line with the long-established sharing principle upon divorce. Mrs Sharp appealed that decision and argued that the equal sharing of the matrimonial assets, which were mostly built up by her, was unfair.
The Court of Appeal have recently found in Mrs Sharp’s favour and decreased the award to Mr Sharp to £2million, which is less than 50% of the matrimonial pot. This decision is a significant departure from the long-established principle of splitting the matrimonial assets down the middle upon divorce, despite the length of the marriage.
Lord Justice McFarlane, one of the three Appeal Court Judges, found that in this case there was no impediment to depart from the established principle of equal division and he concluded that in a short, dual career marriage in which the couple had kept their finances separate, it was indeed justified.
This decision creates further uncertainty in the law and conflicts with the general principle of an equal split upon divorce. This case concentrates on the fairness of the outcome in the circumstances of this couple’s situation and clearly reflects the position that the courts will not apply an automatic split down the middle in every case and that the couple’s circumstances must be considered in each and every case.
The experiment was initially piloted at a divorce centre in Southampton, and its launch is expected to save family solicitors weeks of delays in future cases. In a letter published this week, family division president Sir James Munby and HM Courts & Tribunals Service deputy chief executive Kevin Sadler said that the pilot had accomplished its purpose of introducing a more streamlined process to divorce proceedings, reducing the delays experienced by court users as files are transferred between courts by up to two weeks.
Presently, if a contested financial application is made by one or both parties, the whole proceedings are transferred to a local court. The pilot in question administratively unlinks financial proceedings from divorce so that the main divorce proceedings remain in the specialist centre, whilst staff and judiciary at the local hearing centres worked separately on the contested financial proceedings. Other matters such as consent applications remained at the divorce centres.
A separate financial remedy file is then created at the local hearing centre, holding the same case number as the divorce proceedings. Many family solicitors are hailing this new approach as more effective and speedy than before.
Family law group Resolution also welcomed the news; they stated “Any steps that reduce delay and make the administration of family proceedings more efficient must be encouraged. This is just one example of how quite simple changes can make a difference in practice”.