A BRIEF HISTORY OF FAMILY LAW

Divorce and marital property reform

Three dates are especially significant in a brief history of family law: 30 July 1949 when Legal Aid Act 1949 came into operation; 1 January 1971, the date of the start of Divorce Reform Act 1969 and Matrimonial Proceedings and Property Act 1970 (which together were consolidated later into Matrimonial Causes Act 1973);[1] and 14 October 1991 the date when Children Act 1989 started its work. The first saw a real possibility for many people to be represented in family proceedings. This might be said to have led directly to the success of the second two statutes: a new regime for divorce (including by consent and by effluxion of time,[2] though fault remained as well); and a regime for financial adjustment which included redistribution of family capital and spousal periodical payments (pension adjustment had to wait 30 years statutorily to follow).

The framework of Matrimonial Causes Act 1973 has remained in place since 1971; and, despite the passage of forty years (and an ineffective attempt at reform in the mid-nineties[3]), divorce and distribution of finance following marriage breakdown has remained subject to much the same substantive law ever since. A fault-based divorce scheme has become, inevitably, little more than an administrative exercise, and distribution of family finance is still lead by a scheme which vests substantial discretion as to disposal of family finance to individual judges and district judges. Save where children are concerned, unmarried couples are unaffected by all this.

Children Act 1989 has had its conspicuous successes; but it is now becoming frayed at the edges. It has been extensively amended. It remains separate from adoption law, which is its natural accompaniment. Its working needs full review, perhaps alongside an effective child sex abuse inquiry. And then it needs full amendment and codification as a new single statute.

Finer Report

Whilst the divorce reform legislation was making its way onto the statute-book, Barbara Castle commissioned a report in 1967 on the subject of single-parent families (their benefits, housing and legal proceedings needs). It was not until another Labour social security minister was in power that the report was published (July 1974) as the Report of the Committee on One-Parent Families July 1974 Cmnd 5629 under Sir Morris Finer (the ‘Finer Report’).

It is to the shame of successive governments, Lord Chancellors and now Ministries of Justice that the report has largely languished on a civil servant’s shelf; and that, even though a single family court – one of the more specific reforms proposed by the Report – is also recommended by the Family Justice Review[4] (see below), it has only been achieved, to a very modest degree, in April 2014.

A unified family court would be one of the more obvious means of achieving economy and good case management in family proceedings; yet its obvious sense still evades the Ministry of Justice. The introduction of Family Procedure Rules 2010 and the ‘single’ family court by amendment of Matrimonial and Family Proceedings Act 1984, does not achieve unification. The Family Division is still separate from the rest of the family court and child support is dealt with mostly in administrative tribunals (First-tier Tribunal and Upper Tribunal). Administrative law for children and child support must be dealt with in Queen’s Bench Division and the Court of Protection is rapidly developing its own separate jurisdiction over protected individuals.

Conciliation and mediation

One of the recommendations of the Finer Report was that there should be conciliation services set up to deal with the established consequences of marriage breakdown.[5] This recommendation bore fruit in Bristol where a conciliation scheme opened its doors in 1977. Schemes began to develop in a faltering way after that. These have developed since; but only on an ad hoc basis; and, insofar as they are regulated at all, this is more or less voluntary. The schemes have still not had the formal court or government support which both Finer and the Bristol scheme trustees had expected. The first clause in the government’s draft bill (see below) is no more than a relatively feeble attempt to extend the existing MIAMs appointment.

A mediation movement has developed steadily if slowly; but there is evidence that its role is still misunderstood by many members of the divorcing public.

Solicitors Family Law Association

The call for a more conciliatory approach to marriage breakdown which came from Bristol in the later 1970s had its echo in London in 1981 with the setting up, by a group of solicitors, of the Solicitors Family Law Association[6] (‘SFLA’, now Resolution). The main aim of the group was to develop a code for solicitors practising family law which encouraged those who signed up to adhere to a conciliatory code of practice. The Association aimed to get away from the essentially litigious approach which was the practice of many family lawyers and which was largely encouraged by the rules.

Solicitors from all over the country quickly embraced the code and the Association (now re-named) has now developed a campaigning side to its activities and has the respect of judges and (to a degree) of government.

Clean-break

In Minton v Minton[7] the House of Lords reflected the mood of the times which was to encourage parties, where means permitted, to achieve a ‘clean break; and the case confirmed that Matrimonial Causes Act 1973 gave the court power to do this. Lord Scarman, with whom the Lords unanimously agreed, explained the position as follows:[8]

There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other – of equal importance – is the principle of ‘the clean break’. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make, as between the spouses, a genuinely final order unless it was prepared to dismiss the application.

In 1984 Parliament took the matter a little further by including in its amendments to the 1973 Act[9] a series of ‘clean-break’ provisions including that upon making financial provision as between the spouses the court should have a ‘duty… to consider whether it would be appropriate’ to impose a clean-break on the parties.[10]

Children Act

As the Law Commission, under the guidance of Brenda Hoggett,[11] was considering children law reform the House of Lords delivered its speeches in Gillick v West Norfolk and Wisbech AHA.[12] Two years later Butler-Sloss J was considering the problems arising from alleged sex abuse in Cleveland. In Gillick Lord Scarman considered the extent to which the wishes of a child could override those of her parents (here in the context of obtaining contraceptive advice) and expressed the following view:[13]

Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law’s development, and stamp upon the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change…. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them…. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.

The reasoning in Gillick and the 1988 Report of the inquiry into child abuse in Cleveland 1987[14] reflected a number of the views current amongst children law reformers at the time; and these views, combined with the Law Commission proposals, to provide the fertile soil in which Children Act 1989 could grow.

 

A new approach to care proceedings in particular was provided for in Children Act 1989 Part 4. The aim was to place responsibility for children with local authorities and to reduce the control of the courts (hitherto provided for in various statutes and wardship). The statutory and only basis for taking a child into the care of a local authority was that s/he had suffered ‘significant harm’[15] and needed intervention from a public authority.

Flexibility and formulae

Discretion: ancillary relief under Matrimonial Causes Act 1973

As mentioned by Lord Scarman (in Gillick above), a system of family law requires flexibility. This was explained by Ormrod LJ,[16] for example, in Martin (BH) v Martin (D):[17]

I appreciate… that it is difficult for practitioners to advise clients in these cases because the rules are not very firm. That is inevitable when the courts are working out the exercise of the wide powers given by a statute like the Matrimonial Causes Act 1973. It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the 1973 Act, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion.

Matrimonial Causes Act 1973 s 25(1) and (2) gives the courts wide discretion to dispose of assets as the judge – normally a district judge – thinks fit; and Ormrod LJ was one of the leading judges to explain and develop the new jurisdiction of the family courts

Child Support Act 1991

By contrast, one of the more absurd chapters in twentieth century family law is represented by the child support scheme. Many of the absurdities of the scheme linger still. Its main aim was to eliminate discretion and to provide a scheme for defining and enforcing child support maintenance by mathematical formulae. It has undergone five major reforms (1995, 1998, 2000-2003, 2008 and late 2012); yet it remains astonishingly expensive and ineffective. Substantial amounts of money are unenforced; and its staff still have little concept that most non-resident parents are willing to pay for their children (not always as much as – but sometimes more than – the administrative scheme requires).

White v White

By contrast, in a relatively understated way, Lord Nicholls the House of Lords provided pervasive guidance on dealing with financial provision, with the suggestion that, as a yard-stick, judges should consider apportioning capital as between parties on an equal basis (‘the sharing principle’).[18] This created a shift – perhaps a needed shift – from the previous needs-based principle; and lead to later decisions drawing attention to how also financial compensation for a wife might work (Miller/McFarlane[19]). A problem with these decisions is that they move practice away from the financial world which most people inhabit (Minton (above) and Piglowska v Piglowski[20] dealt with couples of modest means) to rarefied financial circumstances enjoyed by only very few couples.

Domestic violence and divorce reform

One of the stranger episodes of the past forty years has been the passage of the Family Law Act 1996 and its final disappearance (as to Parts 1 to 3). It was an attempt by Lord McKay – well-meaning no doubt, but mostly intensely impractical – to reform divorce law. The administrative structure could never be set up, let alone the political developed will to put Lord McKay’s good intentions into practice.

Family Law Act 1996 Part 4 survives as a more or less uncontroversial framework for a law to regulate the basis on which injunctions can be granted both to restrain violence and to exclude ill-behaving cohabitants (whether married or not) from their former joint homes. This Act operates alongside the little used Protection from Harassment Act 1996 which, in the same statute, makes both a tort and a crime of harassment. Family Law Act 1996 Part 4A has added forced marriage protection to the armoury of family law; and, controversially, there are now proposals to extend the arm of the criminal law to forced marriage as well.

Case management reforms and the Woolf reforms

The 1990s saw family lawyers promoting case management reform[21] (when family proceedings were still covered by the old civil proceedings rules[22]). They failed to follow up this development (save to the limited extent set out in the 1996 Ancillary Relief Pilot Scheme); and then found themselves watching from the side-lines as Lord Woolf and his civil procedure rules committee carried out a major overhaul of the civil justice system (from which family proceedings were pointedly excluded[23]). Family proceedings finally got their imitation Civil Procedure Rules 1998 in April 2011 when Family Procedure Rules 2010 came into operation.

Case management was a buzz-word in CPR 1998; but in truth neither those rules nor FPR 2010 have got to grips with the real needs of case management in a civil justice system (family proceedings, by any proper definition of the term, are civil proceedings): clear definition of issues and control of evidence to deal with those issues; timetabling of cases both as to how they will proceed to trial, and how they will be dealt with at trial (how long will each witness take, how long for submissions etc). The real challenge for any reform following the Family Justice Review will be to achieve clear and effective case management goals.

Any such goals will be undercut by reductions in legal aid[24] as judges struggle to cope in the face of a loss of help which they have been able to rely on practitioners to provide.[25]

Legal aid scheme: flight from justice

The high point of the legal aid schemes since 1949 was probably in 1973 when financial eligibility was extended (increasing the number of people who could benefit from representation) and the ‘green form scheme’ introduced. 1988 saw the beginnings of government retrenchment and a deliberate move from the provision which had enabled most practitioners to regard legal aid income as broadly similar to, and often more secure than, income from private work. Since then each decade has seen the scheme become more complex in inverse proportion to its availability to clients and its fairness to legal aid practitioners. Any attempt to keep rates of pay anywhere near to private rates has spiralled downwards since 1988.

The downward spiral in extent and availability of the scheme accelerated with the euphemistically[26] named Access to Justice Act 1999 – which for various reasons, including legal aid availability, did very little for ‘access’ to justice. Availability of legal aid and the effectiveness of the scheme will deteriorate still further when the recent Legal Aid and Sentencing of Offenders Act 2012 comes into effect.

Cohabitation law and civil partnership

Since the coming into effect of Children Act 1989, and to an extent before that, all law relating to the children of unmarried parents has been exactly the same whether that child’s parents are married or not; and the same is the case with the child support scheme.

When it comes to distribution of property the law has so far been unable to come up with a formula which equates property held by unmarried couples with married couples; and so the forms of property law which applies to couples remains radically different according to whether they are married or not. This unquestionably represents a serious blot on the English family law reform landscape, and a challenge for reformers in the immediate future.

[1] A history of these two subjects is provided for respectively in: *** (Sweet and Maxwell, ) by EH Matthews and Derek Oulton which outlines the early history of legal aid from medieval times to the then modern day (1970); and *** (Oxford, 2005) by Stephen Cretney which explains the detail of modern family law in the period 1850 to modern times. An earlier and idiosyncratic history is provided by *** Lawrence Stone ().

[2] Now Matrimonial Causes Act 1973 s 1(2)(d) (two years living apart and the respondent consents to divorce) and 1(2)(e) (that the parties have lived apart for five years)

[3] Family Law Act 1996.

[4] The proposal was accepted by the government but is still not included in its draft bill published in September 2012.

[5] Paras 4.85-4.90

[6] A superficially similar group has been set up by the bar (the Family Law Bar Association: ‘FLBA’); but this is merely a group within the bar and does not have a separate code.

[7] [1979] AC 593, [1979] 2 WLR 31, (1978) FLR Rep 461

[8] At (1978) FLRep 471

[9] By Matrimonial and Family Proceedings Act 1984

[10] Now in Matrimonial Causes Act 1973 s 25A(1)

[11] Now Baroness Hale of Richmond

[12] [1986] 1 AC 112, [1986] 1 FLR 224

[13] At 250-251 and 253

[14] Cm 412 London: Her Majesty’s Stationery Office

[15] Children Act 1989 s 31(2)

[16] Sir Roger Ormrod sat as a Lord Justice of Appeal from 1974 to 1982.

[17] [1978] Fam 12, [1977] 3 WLR 101, (1977) FLR Rep 444 at 449

[18] White v White [2000] 1 AC 596, [2000] 2 FLR 981

[19] Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 1 FLR 1186

[20] [1999] 1 WLR 1360, [1999] 2 FLR 763, HL

[21] 1995 Practice Directions

[22] Rules of the Supreme Court 1965; County Court Rules 1981 – for an example of Rules of the Supreme Court 1965 Order 24 (interrogatories) in practice see eg Hildebrand v Hildebrand [1992] 1 FLR 244, Waite LJ

[23] Civil Procedure Rules 1998 r 2.1(2) specifically provides that they ‘do not apply’ to family proceedings

[24] Legal Aid Sentencing and Punishment of Offenders Act 2012 Part 1

[25] At the end of September 2012 the Lord Chief Justice could be heard lamenting the increasing number of litigants in person and its effects on court administration.

[26] Euphemistic, in this context, may even be a euphemism for dishonest: the Act deliberately reduced ‘access’ to justice. The honest name for it would have been the Flight from Justice Act.

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One thought on “A BRIEF HISTORY OF FAMILY LAW

  1. Reblogged this on | truthaholics and commented:
    “Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law’s development, and stamp upon the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change…. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them…. “

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