The current head of the family courts, Andrew McFarlane, has suggested separating and divorcing couples share the same lawyer, in a speech given last month at an annual event held by the Family Mediators Association.

The suggestion follows an ongoing struggle inside Britain’s family courts to deal with a significant case backlog. While the Covid-19 pandemic has contributed to the family justice system’s overload, concerns about the increasing volume of cases in these courts have been raised by the government and court reform advocates for several years.

In the speech, McFarlane refers to the new ‘one lawyer: two clients’ model, which enables the same lawyer to advise both parties in a divorce or separation. This form of combined legal representation — which historically has not been allowed over conflict of interest concerns — has been enabled under a new law (the Divorce, Dissolution and Separation Act 2020) which lets couples make a joint application to end their relationship.

McFarlane said:

“There is now a market for legal advice to be given on the ‘one lawyer, two clients’ (or ‘one couple, one lawyer’) model. ‘The Divorce Surgery’, an early entrant into this field, is an arms length agency run by two members of the Family Bar. For a fixed fee, which varies depending upon the type and complexity of the issues, the Surgery will appoint a barrister to meet with the two parties, absorb the relevant detail from each about their circumstances, and then deliver advice as to the likely outcome if the contested issues were to litigated before a court. The model is applied to issues relating to both finance and children.”

Several law firms are currently piloting this model, including Withers, Mills & Reeve, and O’Sullivan Family Law. Family mediation lobby group Resolution launched its own scheme in September.

The event was held to “relaunch family mediation”, which has been spectacularly unsuccessful in England and Wales. Figures published by the government about Mediation Information and Assessment Meetings (‘MIAMs’) show a sharp drop in uptake over several years, while family mediation in general has decreased by at least 50 percent.

There are several reasons for a lack of family mediation uptake in Britain, none of which have been addressed by the government or the family courts. Issues include communication and trust breakdown between couples. Mediation simply cannot work in situations where parties are mistrustful, unable to communicate, or scared.

In his speech, McFarlane tries to make a case for combining the ‘one couple, one lawyer’ model with mediation, in what is an attempt at trying to keep the sector, or family law market, afloat.

Legal fees for divorce have reached unaffordable levels, and legal aid has been almost completely removed for divorce cases except in circumstances where domestic abuse allegations are made. McFarlane proposes that legal aid should be given to couples who use the model, as well as family law mediation.

That proposal could be seen as an attempt to coerce cash-strapped families into these processes, particularly as McFarlane goes on to suggest that Mediation Information and Assessment Meetings could be made compulsory, even in cases where domestic violence is present.

The fact that McFarlane suggests changing the name to Information and Assessment Meetings (dropping ‘Mediation’) and making the meetings more general in tone makes no difference to the outcome on the ground for the victim or survivor of domestic violence. It is still a meeting with their abuser, in an environment that is likely to feel deeply traumatic.

There is also currently no conclusive evidence that mediation works for divorcing or separating couples, but there are very real concerns about how initiatives like the ‘one couple, one lawyer’ model might affect a partner experiencing domestic violence.

From McFarlane’s failings to ensure the safe and correct publication process of family court judgments to his suggestion that the courts should issue “Pre-birth care orders” (which would have been illegal), this latest round of suggestions does little to reassure families in Britain that the system is competent, or on their side.

Useful Links:

• McFarlane’s speech
• Family Court Statistics Quarterly: April to June 2022

An important piece of research by London-based charity AVA (Against Violence and Abuse) shines a light on the connection between preventable domestic abuse and child removals, and offers powerful insights into the way the family court system is used by perpetrators of domestic abuse to traumatise — and separate — children from their non-abusive parent.

The study involved 33 women with experience of domestic abuse and child removal, and peer researchers who conducted 26 semi-structured interviews with mothers in 2021.

At 47 pages it is a thorough piece of research, and in its recommendations echoes much of what Researching Reform and others have said over the years about the need for humane child protection practice and a deeper understanding of toxic patterns of behaviour which put children and their non-abusive caregivers at risk.

Very little in the report touches on how children were impacted by these phenomena as AVA is an adult female-focused organisation, so we would invite them to produce further research focusing on the child welfare aspects within these issues.

We recommend reading the report from start to finish but here is an extract, with real-world testimonies, from the “Impact of child removal” chapter:

“Child removal has profound impacts for both children and mothers, extending far beyond the removal itself. While some mothers chose to share the impact of removal on their children, this section focussed primarily on the impact of child removal on mothers themselves. Many had been living with the threat of removal for years before the event, and expressed the pain, fear and confusion they felt when the decision was finally made.”

Testimony from mothers:

“The [the children] were clinging to me, like, ‘Please don’t send us away, please don’t send us away.’ And the social worker just stood there watching…I put them in the car and then I came back inside and this noise just came – to this day, I’ve never heard a noise like it. And I just remember my dad picking me up off the floor and carrying me to his car, and he took me home because he didn’t want me to be on my own.”

“They informed me your daughter will not come back to you, never ever, and you will not see her again, but if you insist to take or speak or see her, we will take all your kids from you, even the smallest one.’’ I said, ‘Why is that?’ She says, ‘Because you broke the rules.’ Which rules is she talking about? I didn’t know, I didn’t know.”

“When social services got in touch to say they were taking my son from me and placing him with his father, it broke me in a way that only social services can break a mum, and I was absolutely petrified and in fear for my son’s life.”

“When my children were first taken away from me, I literally felt like my heart and everything inside me got ripped away. I wanted to end my life, I didn’t want to be here, I didn’t want to breathe, I didn’t want to laugh, I didn’t want to smile. Everything I did, I felt guilty, because they weren’t with me.”

With thanks to a Tweeter on Twitter called Lisa, who shared the report with us.

You can access the report here.

Apsana Begum, a Labour Member of Parliament for Poplar and Limehouse, asked the government whether it would launch a review into the family courts’ psychology ‘experts’ to ensure proper standards were being met.

Begum, who made the request on 25 February in the form of a written question, asked the Justice Minister “if he will conduct a review of the use of expert psychological witnesses in the family courts for the purposes of ensuring credibility, standards and consistency among experts particularly where allegations of domestic abuse have been made.”

In a written response, Tom Pursglove, the Parliamentary Under Secretary of State said the government did not have any plans to review expert psychological witnesses in the family courts. The under secretary also outlined key legal provisions from 2010 and 2014 which had been enacted to control and monitor expert evidence in the family courts.

Despite these laws, serious concerns about experts used in the family courts remain.

Groundbreaking research produced in 2012 by forensic psychologist Professor Jane Ireland found that at least 20% of all family court psychology experts were unqualified, and that more than two thirds (65%) of  expert  reports  were  either  of  ‘poor’  or  ‘very  poor’  quality. The research also warned that the figures were likely to be conservative.

The findings angered the medical community at the time and led to Ireland’s suspension from her academic practice after being accused of failing to follow research standards. She was eventually cleared of all wrongdoing by the Health and Care Professions Council.

Ireland’s research was also the focus of a Channel 4 documentary in 2012 which included real-world cases of parents who had been reunited with their children after the ‘expert’ evidence used to remove them from their care had been disproven.

A loophole in family court-focused legislation and policy allows unqualified psychology witnesses to offer evidence in family court cases. Researching Reform invited UK watchdog Social Work England (SWE) to close this loophole, but it has so far failed to do so.

The loophole – which could enable incompetent and dishonest family court experts to practice while enjoying total immunity from malpractice claims – allows individuals to avoid registering under protected titles listed by SWE.

Unqualified psychologists can still act as experts and dodge malpractice claims by avoiding the use of various protected titles like ‘educational’, ‘clinical’ or ‘forensic’. This means that they can offer their services without being registered or regulated.

In 2019, Researching Reform spoke with the Expert Witness Institute (EWI) about a new certification scheme for expert witnesses it had been asked to produce for Britain’s civil courts and then extended to include its family courts.

Simon Berney-Edwards, EWI’s Executive Manager, told Researching Reform that the scheme would create a gold standard for expert witnesses inside the court system.

Berney-Edwards said the process was made up of three rounds which would require potential expert witnesses to submit in-depth information about their qualifications and experience. If the initial submission was accepted, applicants would then undergo a compliance test. Successful candidates would then be placed on a waiting list and assessed in a mock court setting.

It is not clear whether the scheme has yet been rolled out in the family courts.

A recent call in August by the President of the Family Division, Andrew McFarlane encouraged more people to become medical experts in the family courts in England and Wales.

The Family Justice Council’s Expert Sub-Comittee’s invitation to an event for the drive said the family courts needed “more medical expert witnesses, in relation to the cause of injuries, but also experts from the allied professions including child and family psychiatrists and psychologists.” The seminar included a segment called “When expert evidence goes wrong – lessons from the case law.”

The demand for more witnesses and ongoing legal and policy gaps allowing unqualified individuals to offer evidence in the family courts are likely to enable more poor practice and unqualified witnesses into the system, which could lead to more unjust and potentially dangerous outcomes for children.

A demonstration taking place today outside the London Family Court in High Holborn hopes to raise awareness about the way mothers experiencing poverty are discriminated against inside Britain’s family courts.

The demo, which has been launched by Support Not Separation (SNS), a movement created by support service Legal Action for Women (LAW), takes place on the first Wednesday of every month.

LAW says women living under the poverty line are targeted by social services who remove a disproportionate number of children from their care, on grounds which are often questionable. The organisation says the incidence of removal increases when a mother experiences intimate partner violence (domestic abuse).

LAW has found that children in these cases are frequently placed with the abusive parent, against the wishes of the child who is either fearful for their own safety or the safety of the non-abusive parent.

The press release for the demonstration notes that 290,000 children in England and Wales will fall below the poverty line, adding to the 4.3m already living in poverty.

The release adds that children placed on child protection plans are rarely those suffering from abuse, but rather neglect, which encompasses poverty-related problems rather than concerns about a parent’s fitness to care for their child.

LAW says families who reach out to their local authorities for help to tackle poverty-created deficits lose their children to care rather than receive the support they have asked for, and need.

The demonstration takes place today from 12.30pm – 1.30pm, outside the London Family Court: First Ave House, 42-49 High Holborn, WC1V 6NP. Twitter users can engage with the demonstration by following and tweeting @NotSeparation.

A mother with lived experience of Britain’s child protection system is calling for a government inquiry into whether family court decisions are breaching children’s and parents’ right to family life.

A sharp increase in recent years in the number of children being removed from parents and placed in state care in England and Wales in the wake of government figures showing that maltreatment and abuse have plateaued for decades has caused concern among human rights experts.

The Human Rights Act, ratified by the UK, includes Article 8 which protects a person’s right to and respect for their private life and family life, and their ability to live their life privately without government interference.

Victoria Hudson, who campaigns to raise awareness about the way women and children who suffer domestic violence are treated in the family courts, asked the Joint Committee on Human Rights to launch an inquiry into current-day family court decisions to investigate whether the judgments and orders are breaching families’ human rights.

The call includes a request to the committee to look at current forced adoption practices in Britain, alongside its recently launched review into forced adoptions which took place between 1949 and 1976.

Victoria is also asking the Ministry of Justice (MOJ) to review her own family law case.

The call has been published on FiLiA’s website, a charity which promotes the women’s liberation movement. The web page invites readers to support Victoria’s campaign by emailing Harriet Harman MP, chair of the Joint Committee on Human Rights, and requesting that she undertakes a review of recent family court decisions and their impact on the rights of children and birth mothers to family life.

Additionally, supporters have been invited to email Lord David Wolfson MP, Parliamentary Under-Secretary at the MOJ, to ask for Victoria’s case to be reviewed.

The page offers lots of useful links, and includes letter templates for readers who want to support one or more of the calls to action, which you can access here.

Andrew McFarlane, the president of the family division, has endorsed the use of independent domestic violence advocates (IDVAs) for family court cases in his latest speech.

The speech, prepared for the Jersey International Family Law Conference 2021, was made on October 8th, and outlines several recommendations which place children at the centre of divorce and domestic violence (DV) proceedings.

During the speech he also reiterated that individuals would not be allowed to offer expert evidence in the family courts unless they could demonstrate their professional experience was based on “an established body of knowledge” and not pseudo-science. McFarlane also noted that experts would have to be impartial and independent.

The recommendations he made for improving the handling of domestic abuse abuses cases included:

• Instructing an expert with relevant expertise whenever an allegation of parental alienation is made by a parent in DV cases, and where an expert is suggested.
• The involvement of Independent Domestic Violence Advisers [‘IDVA’].
• The implementation of special measures for vulnerable victims of abuse when giving evidence.

McFarlane also made recommendations which addressed parental conflict in divorce proceedings:

• A framework and language which promotes child welfare and a co-operative parenting approach.
• Access to information and direct services for children.
• Mechanisms for the child’s voice to be heard at the time when decisions are being made which affect them.
• Access to information and direct services for parents about how to parent following
• separation.
• A consideration of the emotional state of the parents and the impact this has on their parenting decisions.
• A multi-disciplinary response, involving therapists, parenting specialists, mediators and legal services.

He also touched on ways in which language in the family courts should change and suggested the following:

1. Safety first – if needed specialised services and the court are there to protect you.
2. In the absence of safety concerns – the law expects parents to exercise responsibility,
   not rely on rights, to prioritise child welfare above negative feelings about each other.
3. Getting away from the adversarial language promoting a ‘fighting for my rights’
   mentality (and from the promotion of this by the use of such acclamations as ‘somebody you
   would want in your corner’ found in some legal directories and websites).

In closing, McFarlane summarised his recommendations as part of a package to:

• Improve the identification of and response to domestic abuse;
• Pave the way to reform so families experience a smoother more efficient process which delivers them more quickly to focused help, and, where appropriate, does not bring them to the door of the court;
• To increase the court’s ability to engage with and conclude a case, and;
• To reduce backlog.

You can read the speech in full here.

An online event taking place on Thursday will highlight the way family courts in England and Wales handle domestic violence cases on the ground.

Despite ongoing policy and law-based efforts in recent years to raises awareness about domestic abuse and how it affects children and families in the UK, family courts have not managed to provide a uniform and competent service to tackle this form of violence.

The free online event has been organised by Support Not Separation — an organisation run by Legal Action for Women — and Barnet Women’s Equality Party, and is titled “Domestic abuse & the treatment of mothers & children behind the closed doors of the Family Court.”

The event will be chaired by Christine Dean, the deputy leader of the Women’s Equality Party. The page for this event says Dean has more than 25 years’ experience as a family lawyer.

Panellists include Nihal Ates, a member of Solace Women’s Aid, Barnet, which provides support to survivors of domestic abuse in the borough and Anne Neale, a member of Legal Action for Women, an organisation which describes itself as “a grassroots anti-sexist, anti-racist legal service for all women.”

The event is taking place September 23, 2021, from 7:00pm to 8pm.

You can book your ticket here.

For questions about the event, you can email Olivia and Lisa at: barnet@womensequality.org.uk

The event is free to attend, but the booking site says donations are welcome.

Victims of domestic abuse and their children who risk being homeless must be prioritised for accommodation by councils under new measures in the Domestic Abuse Act which came into forced on 5th July, 2021.

The new duty on councils is designed to protect victims of domestic violence who may be forced to stay with their abusers if they are unable to find a home of their own.

Previously, victims had to prove they were ‘vulnerable’ as a result of domestic abuse before being prioritised for housing. Under the new law, domestic abuse is now a standalone reason to qualify as a person needing housing support.

In the press release announcing the measure, Minister for Rough Sleeping and Housing, Eddie Hughes MP said:

“Domestic abuse is a heinous crime and it is a tragedy that some victims remain with their abusers for fear of not having a roof over their head.

[The] change will mean all councils must find accommodation for victims who are homeless as a result of domestic abuse – ensuring they have a safe space to rebuild their lives.”

Councils are now under a legal duty to ensure that accommodation is provided to victims of domestic abuse.

You can follow the Ministry of Housing, Communities and Local Government on Twitter @mhclg

Welcome to another week.

The UK Home Office has published a list of support services for adults and children affected by domestic abuse in England and Wales.

The page offers the details of organisations tackling domestic abuse including services supporting the LGBTQ, religious, Black and Middle Eastern communities; as well as support for children, parents experiencing adolescent violence, those without settled status in the UK, and the elderly.

The list is very good in that it covers several kinds of abuse such as sexual assault, Female Genital Mutilation, forced marriage, economic abuse, stalking, honour based abuse and technological abuse.

There is also a dedicated section for people who don’t have settled status in the UK, to apply for settlement and access to benefits.

The section says:

“If your relationship with a British citizen or someone settled in the UK has broken down because of domestic abuse you may be able to apply for settlement as a victim of domestic violence.

The destitution domestic violence concession provides help if you are in the UK on a temporary visa as a partner, your relationship has broken down because of domestic violence and you have no money to support yourself.

The destitution domestic violence concession offers domestic abuse victims 3 months’ leave outside the immigration rules with the ability to apply for access to public funds.

This provides the opportunity to gain a temporary immigration status independent of the abuser and to fund safe accommodation, where victims of domestic abuse may consider applying for indefinite leave to remain or deciding to return to their country of origin.”

The page also offers information on how to get welfare benefits and housing advice, and access to support from your local job centre. The page explains that even if a job centre is closed, staff will still meet vulnerable people including those fleeing domestic abuse.

You can access the page here.