This first issue of the new year opens with a close examination of the impact of LASPO on the practice of family solicitors and CABx working with low income clients in private law family cases. By the time this issue is published the report of the LASPO Review may have reached the public domain. At the time of writing (December 2018), however, there is little optimism about the possibility of any substantial rolling back of the policy which came into effect as part of the austerity culture, but had deeper roots in the lack of confidence within government and in particular within the Ministry of Justice about the value of involving courts and lawyers in such cases. Public money for private quarrels has long been a bone of contention, and particularly so since the attempts at substituting mediation for adjudication failed and the continuing use of courts by those without the resources for representation has made the operation of the court system increasingly troubled. Simone Wong and Ruth Cain carried out a small but powerful in depth study of solicitors and advice workers, finding solicitors working in their own time, offering unbundled services, with litigants increasingly ‘giving up on pursuing their cases’ with a resulting increase in post separation capital loss, poverty and debt amongst clients ‘abandoned by the state.’
Staying with small scale local intensive empirical work, this issue then begins to broaden out to take a more international perspective . Maria Wright gives us a snapshot of how recent judgments in child protection cases with international connections are affecting the work of local authority lawyers and social workers, following the judgment by Sir James Munby in the case of a 12 year old Slovakian child in Re E (A Child) (Care Proceedings: European Dimension) 9[2014]EWHC6(Fam);[2014]1 WLR 2670. The series of judgments addressed here gave rise to tension between the need to adhere to the procedural and substantive guidance provided in this difficult area, but and was followed by increasing tension between the need to follow the guidance and also to address the welfare needs of the child concerned.
The third article in the general section by Vivienne Elizabeth returns to private law, but focussing on neither the needs of the children nor the demands of fathers but instead talks about the grief of post separation mothers who lose care time . Her title quotes one mother as saying ‘ It’s an invisible wound’. The needs and feelings of twelve mothers separated from their children are described in New Zealand, where as in other jurisdictions the experience of losing maternal care time is becoming more common ‘as a result of the gender neutrality of custody laws’ and the ‘increased emphasis given to shared parenting as a viable post separation parenting arrangement’ . Elizabeth points not only to the impact on the women but also the need to consider a relational welfare approach to the children’s best interests. Moving to Australia we have an intriguing account of the development of the use of ‘apps’ in parenting on the smart phone after separation from Belinda Fehlberg and Bruce Smyth with the delightful title of ‘ Whats ‘appening?’ After interviewing 35 separated parents the authors found that half had used an app, and that email and text were the most popular forms of communication. The large number of apps available were mainly from the US and had been developed for use alongside the justice system, The authors found that the diary function, as for example in Family Wizard, was particularly helpful in helping both parents to stay in touch their children’s activities… school functions, medical appointments etc, and to make such communication less adversarial. But they also found a considerable gap between what is available and what is used. As editor, might I add the potential of using a ‘Third eye’ in conflict reduction. Some parents have found that using only email and copying in a trusted (but neutral and passive) intermediary can act as a brake on the expressions of more negative or aggressive feelings.
Our final paper in the General Section from Robert Leckey moves away from children towards examining the financial arrangements to be made following separation after cohabitation, through analysis of Canadian Supreme Court cases. If cohabitation can be defined as a joint family venture, then there will be a need to share the wealth gained during the cohabitation. But he finds that the decisions being made are both diverse, and gendered. Leckey argues that the inequality of access to this remedy indicates the limitations of incremental judge made law reform . Perhaps only legislation can clearly keep pace with the rapid development of contemporary family life. The Charter of Rights and Freedoms contains no obligation to extend rights to cohabitants, and governments have been nervous of extending property rights to groups such as flat sharers. Only where there is common effort, common goals, and marriage like behaviour can common venture be established. In 115 cases where unjust enrichment was sued for, the court used joint family venture arguments in the 8 common law provinces. Using marriage law would provide more certainty, but perhaps be thought too rigid? The debate continues.
This issue also includes in the Ombudsman,Tribunals and Administrative Justice Section a substantial article on Therapeutic Jurisprudence and Mental Health Tribunals by Glover Thomas; cases by Cranmer (re the status of the nikah as valid void or voidable marriage, Hayward(on opposite sex civil partnership) and Morgan, (on the use of behavioural based grounds for divorce) . Finally we have two book reviews: Jonathan Herring on Rosie Hardings’s Dementia, Relationality and the Law, and Stephanie Reynolds on Charlotte O Brien’s Unity in Adversity: EU Citizenship Social Justice and the Cautionary Tale of the UK.
Given the current level of Brexit debate, we decided to offer our readers a break from further discussion pro tem.
With all good wishes for the coming academic year.