Family Justice Reform

Tim Loughton Excerpts

Wednesday 15th November 2017 Westminster Hall

[Suella Fernandes]

It is a tragedy. Those cases are unspeakably sad and a reflection of the need for reform. There is a clear need, if we are to fight the burning injustices in our society, to start with the foundation of our society: families and, more specifically, parents. That change is vital.

My first proposal is to enshrine a rebuttable presumption of shared parenting. In the majority of divorce cases, parents are able to agree on how their children will be cared for, with whom holidays will be spent, how decisions about a child’s life will be made and how the child may spend time with grandparents and other extended family, as my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) mentioned. However, in many cases—approximately 165,000 in 2016—agreement cannot be reached. In those cases, a judge will determine the contact and residence for the parties, and that is when problems can start. As well as the paramountcy of the welfare of the child as the guiding principle, parental involvement—direct or indirect—is the relevant test in deciding access and residence. I see the former Minister, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), in his place. He should be applauded for his efforts in campaigning to secure considerable progress in this field and improving the lot of non-resident parents through the 2014 Act.

My point today is that that standard is too low, as it does not enable a meaningful relationship to be fostered between parent and child. A rebuttable presumption in favour of shared parenting would go further and, as a starting point, actively enable more of that vital, meaningful relationship to be fostered between parent and child, in the event of family breakdown. To be clear, I am not talking about equal parenting. A crude, mathematical, 50:50 division of time is not always practical, desired by the parties, or optimal for the child. Rather, legislation that emphasises the importance of both parents in a child’s life is needed—other than in cases of violence or where the child is not safe, obviously.

Shared parenting is commonplace throughout the world, and operates without difficulty in Sweden, Canada and the US states of Florida and Iowa. Alternatively, Dr Hamish Cameron has suggested that there could be a presumption of the continuity of the previous arrangements. If both parents used to take the child to school, that should be the starting point. If both parents provided equal care, they should continue with that arrangement. Such examples would improve on the parental involvement—direct or indirect—position that we have now. If we are going to continue to tell fathers that they have equal responsibilities, we also need to give them equal opportunities to carry them out.

Secondly, child arrangement orders, which determine the contact and residence of children upon divorce, need to be better enforced. The current enforcement scheme sits alongside the general contempt powers of courts. If satisfied beyond reasonable doubt, courts can refer the parties to a separated parents information programme, vary or make orders for compensation, or commit to prison—remedies that are so rarely applied, it is easy to forget that they actually exist.

Although the majority of orders are complied with, too often they are breached with impunity—usually by the resident parent, due to the reluctance of courts to penalise non-compliance effectively. In 2015, of the 4,654 enforcement applications made to court, a mere 1.2% were successful. I question whether the criminal standard of proof is the right one, when family courts make other decisions, including placement in care or change of residency, on the lower threshold of the balance of probability.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I pay tribute to my hon. Friend; this is a really important subject that does not get sufficient airing in this place. She is absolutely right: we can give a child the very best start by maximising the relationship with both parents wherever possible. Despite the important reforms that came in with the 2014 Act—albeit a slightly more diluted version of shared parenting presumption than some of us wanted in the legislation—in too many cases the enforcement remains weak, and parental alienation syndrome is doing serious damage to children as a result. Does she agree that the nuclear option of a change of residency needs to be used in those extreme cases, to make the point that a child is not a pawn between two warring parents? The child’s welfare is paramount, and that must be reflected in the court, and in the involvement of both parents.

[Suella Fernandes]

I could not have put the point better myself. It goes to the nub of the issue: unfortunately, the courts are too slow to act when those orders are being breached, with the effect that they are meaningless and not worth the paper they are written on. I agree that a tougher approach is needed: one that includes the option of transfer of residency in appropriate and reasonable circumstances; one where community service is applied realistically and in practice, not theoretically; and one where confiscation of driving licenses or passports is considered. Furthermore, the costs of making those applications should be borne by the parent in breach. Currently, there is often no order when it comes to costs. Shared parenting and robust enforcement must be at the heart of reform if we are to strengthen families and child wellbeing.

The second main area ripe for reform is our antiquated divorce law. It is time for no-fault divorce. As the recent Court of Appeal case of Owens showed, not all marriages end because of fault. However, we have a law that promotes the farce of allocating blame, setting parties on a needlessly confrontational path that only fuels animosity and costs. In 2015, my hon. Friend the Member for South Norfolk (Mr Bacon) introduced a private Member’s Bill proposing no-fault divorce, and has since been an energetic campaigner on the subject. The principle is supported by Baroness Hale, Sir Paul Coleridge of the Marriage Foundation, the solicitors Vardags, and the Family Law Bar Association.

There has always been sensitivity around the notion of undermining marriage, but we need to fundamentally rethink that position. The current system forces couples to find blame, creating acrimony where it may not have existed. Divorce is a fact of life—at least for the 120,000 couples that went through it last year. It is not always about fault, but because the parties are obliged to justify fault, they often just make it up, which creates hostility at the outset. By encouraging parties to start their divorce with accusations of misconduct, the current process pushes them towards falling out, which can often affect the children who are caught up in the process. Fault-based divorce can also exacerbate domestic abuse for those women in abusive or violent relationships, because the partner whom they are trying to divorce can refuse their petition and drag it out for much longer than is safe.

Fault-based divorce increases the cost for both the state and the litigants. The need for judicial scrutiny of those 120,00 applicants per year places a significant burden on the courts; a streamlined process would save time and money. As Baroness Hale has made clear, this is not about quickie divorces, but about removing the fallacy of fault. A 12-month cooling-off period would enable that balance to be struck.

The problem was starkly highlighted by the Court of Appeal in the recent case of Owens, now on appeal to the Supreme Court, in which the petitioner—married for 27 years—was refused a divorce as she simply could not prove unreasonable behaviour, adultery or desertion. Sir James Munby, the president of the family division, described the current law as

“based on hypocrisy and lack of intellectual honesty.”

The Court was bound to uphold the appeal and refuse the divorce, and held that it was down to Parliament to establish no-fault divorce. Scotland is an example of where it has worked well, not causing a long-term rise in divorce rates as feared. Divorce is painful enough, but the current law only makes things worse.

As part of reforming divorce law, Parliament should also establish the enforceability of pre-nuptial agreements. If we are to support marriage, we need to accept that people are getting married later in life, with assets earned before and during their union. If the parties agree, those assets should be protected, not put at risk. A review should look into that, as well as into reform of the Matrimonial Causes Act 1973 and financial remedies and maintenance, which are rooted in a bygone era. That framework dates back to a time when women were entirely financially dependent on their husbands, but today many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments. A commission or review should make recommendations on how to strike a better balance, so that England can shed its reputation as the divorce capital of the world.

Cohabiting couples should be afforded protection on separation. Cohabiting couples with children are the fastest-growing type of family in the UK. Between 1996 and 2016, the number of couples in that position increased from 1.5 million to 3.3 million, yet they have no rights in the event of a split. An inquiry looking into what basic protections are justified would be valuable.

Lastly, transparency in our family courts is much needed and I urge the Minister to look into that. Reform of the way in which the family courts operate in public law needs wholesale review. Far too many children are taken into care on the basis of wholly inadequate and poorly argued reasons, according to Sir James Munby, president of the family division. Only the glare of publicity will enable that to stop, so we need to remove the cloak of secrecy and open up the family courts.

Shared parenting, enforcement and no-fault divorce must be the bedrock of reform, but a broader review that covers the other points I have set out today is also required if we are to make progress. It is an opportunity that Members from both sides of the House, working alongside the Government, must seize, if we are to stop parents and, most importantly, children from suffering unnecessary emotional trauma.

I know that this Government’s commitment to social justice is unrivalled. The stories of injustice and hopelessness are too many to ignore. I hope that the Government and this House will begin the important work of making our family justice system fit for the 21st century.

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Member for Fareham (Suella Fernandes) on setting out such an effective case. When researching this subject, I was very conscious of its complexity—she referred to that—and I want to look at a couple of points in particular. The scope of the debate far outweighs the allocation of time that we have to explore, discuss and come to conclusions, but it is an opportunity to put down some markers on constituency cases that need consideration. I am pleased to see the Minister in his place and, as always, I look forward to his comprehensive reply.

I mainly work in my Ards constituency office, with four female members of staff. There is one male and another female staff member in one of my other offices. It is hard to believe that there are so many women in what the media has made out to be a male-dominated world—in my office, they outnumber us by three to one, and that is the way life is. During a recent coffee break conversation, some of my staff highlighted to me a legal issue they had dealt with, which I want to put on record—it is one of two things I want to put on record in Hansard today.

Northern Ireland, and I suspect other parts of the country, has very little legal protection or standing for those who are common-law partners. A lot of people have the perception that common law gives the same protection as a marriage licence, but that is not the case. It was only when that came to my attention through my constituency office that I recognised that this is an anomaly that needs to be addressed, and I want to present that case today. What I found surprised me, but it is certainly the case, and the Northern Ireland Direct website provides further information:

“Most people think that after they’ve been living with their partner for a couple of years, they become ‘common law husband and wife’ with the same rights as married couples. This is not the case. There is no such thing as ‘common law marriage’. In fact, couples who live together, also called co-habitants, have hardly any of the same rights as married couples or civil partners. Legal and financial problems can arise if you decide to separate, or if one of you dies. And while you do have legal protection in some areas, you should take steps to protect yourself and your partner.”

The website is clear and makes people aware of that, but the fact is that people do not look at those things unless the need arises.

In my office, we have had a couple of examples of people who have been together for a long time, and I would like to give an example without mentioning any names or circumstances. Let us take a couple who have lived together for 10 years. The lady moves into the man’s home and begins to pay into the house. Her name is not on the deed, and therefore there is little protection. I put it to the Minister that that should not be the case. I can understand that when there is a short-term relationship that does not work out, but not in cases where partners are co-habiting for years. They have no legal protection whatever. It is up to us to step up and put in place those protections.

[Tim Loughton]

The hon. Gentleman is making a very good point, which I make in my forthcoming private Member’s Bill about extending civil partnerships to opposite-sex couples. There are 3 million couples in this country living in the circumstances he describes, more than half of whom have children, who have no rights—financial, tax or inheritance, and so on. I hope he will support my Bill, which would extend the rights that married couples have to couples who do not want to enter a formal marriage. That relationship could be recognised by the state and they could be given all those rights through extending civil partnerships.

[Jim Shannon]

I thank the hon. Gentleman for his intervention and explanation. There is no reason why we cannot support that—indeed, I am going to say those things right now. I fully support what he has put forward.

In the example of the lady who moved in and paid into a mortgage, everything in her relationship was in the name of her partner—their house, their car and every other loan they took out. At the end of the relationship, which ended through no fault of her own, she ended up with absolutely nothing. I find that quite annoying, and I want to put that on record. There should be no young woman or man who has paid off someone else’s mortgage, only to receive marching orders because the grass is greener on the other side.

I ask the Minister to consider working with all the devolved Assemblies—as long as we have a Northern Ireland Assembly, of course—to tighten up protection and responsibilities for long-term co-habiting partners. At the very least, people should be made aware that the common-law principle is a myth. When they chose to move in with someone rather than to formalise their choice, they are left open, and legal redress is a long and drawn-out process. There is a process, but it is laborious, convoluted and difficult to see through. In my introduction, I said how complex the situation is; the stories of the people who come to tell me what they have had to go through to try to get to the end of the road are quite unbelievable.

People can prove they have lived in a house through direct debits and other bills that they pay, but that process should not be difficult or open to badness—if I can use that terminology—from one partner, leaving the other partner homeless and hopeless.