Party manifestos rarely include specific proposals for legislation or changes in the law, tending instead to go for rather woolly and vague aspirations which are less likely to come back and bite them if and when they get into power. But in the 2017 general election the main national parties have made a few specific pledges in relation to family law, amidst the aspirational waffle.
For example, Labour has promised something very specific, namely the introduction of a no-fault divorce procedure.
This has been called for by various groups (such as Resolution) for a while, and is widely supported, eg by the President of the Family Division, Sir James Munby, who described the current position in one recent judgment as characterised by “hypocrisy and lack of intellectual honesty” (see Owens v Owens  EWCA Civ 182;  4 WLR 74, at ). But despite this, attempts to introduce it in the past have foundered : as the President observed recently, there has been a “lamentable history of procrastination [which] suggests it would be unwise to assume speedy progress”.
Part 2 of the Family Law Act 1996 would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. But in 2001, following a series of information meeting pilot schemes, the then Government concluded that the provisions were “unworkable”. Part 2 was ultimately repealed without ever being implemented.
In 2015 Richard Bacon, a Conservative MP, introduced a private members’ bill proposing no-fault divorce with a year’s cooling-off period, but it failed to get a second reading. So it appears to have cross-party support, yet Labour are the only party to include a specific pledge to introduce it.
Another reform to the divorce law which you might have expected the parties to discuss in their manifestos relates to ancillary relief, or the “money claims” aspect of divorce, which also manifests itself in two sub-issues, one being the equality or otherwise of the carving up of assets, and the other is the “meal ticket for life” issue, i.e. how long financial support should continue after the parties part.
Sir James Munby recently said he thought all money claims should be separated, procedurally, from divorce (and analogous procedures, like nullity). No party has taken up his suggestion, however.
Baroness Deech (a cross-bench peer) in a recent private members’ bill attempted to address money claims issues generally, by replacing the existing provisions of section 25 of the Matrimonial Causes Act 1973 with new provisions recognising prenuptial agreements and providing for a more predictable outcome for couples. She said in debates that “The law has been developed by the judges over the last 40 years, almost as if the guiding statutory provision in the Matrimonial Causes Act 1973 did not exist.” She does not blame the judges. They have struggled to keep up with changing social expectations over the forty plus years since the Act was passed.
But having had its second reading in the Lords, Deech’s bill was lost when parliament was dissolved.
None of the other parties mention divorce reform.
However, almost everyone (except UKIP) proposed to tackle the topical issue of domestic violence.
The Conservatives’s specific pledge is for a new Domestic Violence and Abuse Bill “to consolidate all civil and criminal prevention and protection orders and provide for a new aggravated offence if behaviour is directed at a child”. The Act would also “enshrine a definition of domestic violence and abuse in law” and there would be a new domestic violence and abuse commissioner. The Conservative Government had been taking the Prison & Courts Bill through Parliament just before its dissolution, and this would have brought in a prohibition on cross examination of complainants by the alleged perpetrator in certain circumstances in the family courts (it is already prevented in the criminal courts).
Meanwhile Labour want to reverse the requirement for victims of domestic abuse to pay doctors for certification of their injuries. They too wish to “legislate to prohibit the cross examination of victims of domestic violence by their abuser in certain circumstances” and to ban “the use of community resolutions as a response to domestic violence”.
The Liberal Democrats also plan to “Review the investigation, prosecution, procedures and rules of evidence in cases of sexual and domestic violence.”
The Greens too, in their very vague and aspirational manifesto, would “implement a UK-wide strategy to tackle gender based violence, including domestic violence, rape and sexual abuse, FGM and trafficking”.
Adoption and transparency
UKIP meanwhile have focused their attention, once again, on the issue of “forced adoption” (better described as non-consensual adoption – the consent, or lack of it, being that of the parents).
UKIP say “up to 96 per cent children adopted from public care are forcibly adopted, against their parents’ wishes”, though it’s not clear where they get their figures from. They say these concerns, raised in their 2015 manifesto, have become “even more pressing”. Looking at their 2015 manifesto, however, they did not provide any figures, merely saying “There is also concern among the public at rising levels of ‘forced’ adoptions.”
It’s not clear what UKIP want to do about it, other than to increase public awareness through greater transparency — although perhaps without understanding how much of it there is already. (In that sense they are probably simply relying on the general tenor of reporting in the Daily Mail and Daily Telegraph.) Nevertheless, their proposals are very specific in this regard. They include (with our comments):
- Removing the current blanket ban on media reporting of placement and adoption proceedings and allowing journalists to report on such cases on the same basis as other family law proceedings. (This is probably referring to FP rule 27.11 which gives a right to journalists to attend many children cases but not adoption or placement proceedings. Regardless of attendance rights, all children cases are subject to similar quite tight controls on reporting, and adoption and placement cases are treated no differently. Judgments from many such proceedings are published and they are subsequently reported in the press – and there is still a power to permit journalists to attend placement or adoption proceedings on application.)
- Publishing all case summaries, skeleton arguments, judgements and other documents relating to Family proceedings as a matter of course, on an anonymised basis. (Judgments are already published, if not as a matter of course, certainly on a more frequent basis than in the past. Skeleton arguments would need some modification if they were to be published as a matter of course. This is not a cost neutral proposal and either judicial time, court staff time or funding for advocates to carry this work out would need to be made available)
- Requiring expert witnesses to list previous court cases in which they have given evidence (presumably this could only be on the basis of cases that are reported and have a neutral citation).
- Promoting more extensive use of Special Guardianship Orders (e.g. in favour of grandparents) so that children can retain links with their birth family.
Legal aid, access to justice, etc.
The Conservatives want to “explore ways to improve the family justice system” but don’t mention anything about legal aid. Labour have promised to review the legal aid means test and say they will “immediately re-establish early advice entitlements in the Family Courts” – which we think refers to the means tested ‘legal help’ (early advice ahead of or to avoid proceedings) largely removed for cases about divorce and children by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, on legal aid more generally they are awaiting the recommendations of the Access to Justice Commission under Lord Bach, which has yet to report.
The Liberal Democrats want to “conduct an urgent and comprehensive review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act on access to justice, particularly funding for social welfare appeals, and domestic violence and exceptional cases”. They also plan to reverse the recent increases in court and tribunal fees, “which prevent many from pursuing good cases”.
More generally, the Lib Dems want to “Enshrine the UN Convention on the Rights of the Child in UK law” (it’s already part of Welsh law) and (despite Brexit) “Ensure that the UK retains international arrangements for jurisdiction, the recognition and enforcement of judgments and for family cases currently enjoyed under the EU Brussels I and Brussels II regulation and the Hague child abduction convention.”
Both Labour and the Lib Dems are keen to reform the Gender Recognition Act 2004 but the right wing parties don’t mention this.
UKIP, meanwhile, want to “establish a legal commission to draw up proposals to disband sharia councils” on the basis that “there should be one law for all” and “A society that can pick and choose what legal system it lives under gradually ceases to be a society at all.” They seem to overlook the fact that sharia councils operate on a voluntary basis, like the Beth Din and indeed any sort of arbitration, and that these all operate subject to and not in conflict with the civil legal systems of England and Wales, Scotland and Northern Ireland. However, they may have a point about how voluntary sharia council really are in respect of women’s rights / power / abuse issues.
Read the manifestos
Liberal Democrat (PDF)
Featured image by craftivist collective, via Flickr, reproduced with thanks.