What’s in the News – just in case you missed it

Domestic Abuse Act 2021 (Commencement No 4) Regulations 2022

These regulations bring into force various parts of the Domestic Abuse Act 2021 on various dates in May and June 2022:

  • Sections 62 (special measures in criminal proceedings for offences involving domestic abuse) and 67 (orders under section 91(14) of the Children Act 1989) on 19 May 2022.

    • Section 70 (strangulation or suffocation) and Schedule 2 (strangulation or suffocation: consequential amendments) on 7 June 2022.

    • Section 64 (special measures in civil proceedings: victims of domestic abuse etc) on 14 June 2022.

Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022

The Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022 (SI 2022/568) were made on 18 May 2022 and come into force on the day after sections 65 and 66 Domestic Abuse Act 2021 (DAA 2021) come into force, which is expected to be in June 2022.

Section 65 DAA 2021 introduces new Part 4B into the Matrimonial and Family Proceedings Act 1984 and prohibits cross-examination in person between a party and a witness in defined circumstances, including where there is evidence of domestic abuse. Section 66 of the DAA 2021 introduces new Part 7A into the Courts Act 2003 and makes similar provision in civil proceedings.

The prohibition on cross-examination in person in family and civil proceedings (sections 65 and 66, DAA 2021) will automatically apply where:

  • A party has been convicted of, or given a caution for, or (in relation to family proceedings) is charged with a ''specified offence''.

    • A witness is protected by an on-notice ''protective injunction'' against another party.

    • ''Specified evidence'' is adduced showing there has been domestic abuse between a party and a witness.

The Regulations specify the types of offences (Schedule 1), protective injunctions (Schedule 2) and forms of evidence of domestic abuse (Schedule 3) that will trigger the automatic prohibition on cross-examination in person.

The types of offences specified in Schedule 1 go beyond those relating to domestic abuse and include child abuse, sexual abuse and other violent offences. This is to protect witnesses in family and civil proceedings who may be vulnerable for reasons other than domestic abuse.

The forms of evidence of domestic abuse specified in Schedule 3 include letters from an appropriate health professional or independent domestic or sexual violence advisor and letters from organisations providing support services and local authority housing officers. The court may also accept evidence demonstrating that a party has been the victim of economic abuse.

Civil and Family Proceedings Fees (Amendment) Order 2022

Made on 11 May 2022, this order amends the Family Proceedings Fees Order 2008 (SI 2008/1054) and the Civil Proceedings Fees Order 2008 (SI 2008/1053). The amendments provide an exemption from paying specified fees in relation to applications for orders or directions made under section 31R to W Matrimonial and Family Proceedings Act 1984 and section 85F to K Courts Act 2003. These provisions were inserted by sections 65 and 66 Domestic Abuse Act 2021 and relate to the prohibition of cross-examination in person in family and civil proceedings.

The Order comes into force on the day on which and immediately after sections 65 and 66 of the DAA 2021 come into force.

Child Support (Amendments Relating to Electronic Communications and Information) (England and Wales and Scotland) Regulations 2022 (SI 503/2022)

In March 2022, the Department of Work and Pensions published its response to a consultation on proposals to modernise and improve the Child Maintenance Service.  In it, the DWP stated that changes would be made to legislation to enable more CMS notifications to be sent, received, and accessed digitally where appropriate. The CMS would no longer be restricted to a specific method of communication and would permit electronic communication with employers and third parties. The DWP also stated that it would expand the list of persons and organisations from whom the CMS could require information relevant to the calculation, collection and enforcement of child maintenance.

The Child Support (Amendments Relating to Electronic Communications and Information) (England and Wales and Scotland) Regulations 2022 (SI 503/2022) make these changes by amending the following regulations:

  • The Child Support (Collection and Enforcement) Regulations 1992 (SI 1989/1992).

    • The Child Support Information Regulations 2008 (SI 2551/2008).

    • The Child Support (Management of Payment and Arrears Regulations) 2009 (SI 3151/2009).

    • The Child Support Maintenance Calculation Regulations 2012 (SI 2677/2012).

CMS users will be able to choose whether to have communications from the CMS electronically or by post, so that the needs of vulnerable users can be met. Statutory notices sent electronically will have the same legal validity as when sent in the post. The CMS will continue to send letters that have serious consequences for the recipient (such as the removal of a non-resident parent's passport) in the post as well as electronically.

The additional persons and organisations who will have a duty to provide information requested by the CMS are the trustees, managers and administrators of personal pension schemes, academy proprietors, the Motor Insurers' Bureau (or its officers) and persons engaged in investment management or share trading activities.

Aviva survey reveals divorcing couples don't understand implications for their pensions

The survey found that one in six divorced people said they did not realise their pension could be affected by splitting up.  More than a third said they made no claim on their former partner's pension and 8% did not have their own pension savings, instead relying on their partner to fund their retirement.  As a result of divorce, 19% say they will be, or are, significantly worse off in retirement.  You can read the full report here

Divorce applications up in the first week of no-fault divorce

HMCTS has reported they received 3,000 divorce applications in the week following the introduction of no-fault divorce – a 50% increase on the amount they would usually see. 

Relationship breakdown should be treated as "transactions, not litigation"

Delivering the Bridget Lindley Memorial Lecture at the Family Justice Council conference, Chair of the Family Solutions Group Helen Adam said the need for lawyers to take a different approach to family separation was part of the "paradigm shift" required to have child welfare leading the design of family law.  She said:

"We could ignore the evidence, or deny the evidence, for this is unwelcome; it's easier to carry on as we are. As with climate change, government is slow to catch on. But the evidence for climate change is real and growing, we see it all around us, it becomes impossible to ignore. I say the same for an adversarial system for separating families being harmful."

She went on:

"Family cases are not legal disputes as with other types of law; they need a different approach, alongside other professionals. We need to work creatively and collaboratively alongside each other, and with curiosity.

"We do not have all the answers ourselves; we can be curious about what other agencies or professionals bring to the family dynamic and learn from each other."

House of Commons Library publishes "Same-sex marriage in the UK's Overseas Territories" Insight examining Privy Council decision

In March 2022, the UK Privy Council ruled the constitutions of the Cayman Islands and Bermuda (two Overseas Territories) do not provide the right for same-sex marriage, with the choice instead with their local assemblies.  The Insight explains the background to the judgments, the situation in other UK Overseas Territories, and what the next steps might be.

In the case of Bermuda, the Privy Council held that Bermuda's 2018 Domestic Partnership Act is constitutional. It allows same-sex couples to form partnerships but prohibits them from marrying.  Under the Territory's constitution, which was introduced by the UK in 1968, the Privy Council determined there were insufficient grounds to support the challenge brought by local Bermudians.

In the separate Cayman Islands case, the Privy Council determined there is no right to same-sex marriage under the Cayman Islands' Constitution, but its Parliament can introduce legislation to recognise it.  The ruling does not affect civil partnerships, which were introduced in 2020 and confirmed in a local legal judgement.

Four Overseas Territories allow neither same-sex marriage or civil partnerships - Turks and Caicos, Montserrat, British Virgin Islands and Anguilla.

In response to the Foreign Affairs Committee in 2019, which urged the UK Government to prepare to "step in" and set a date for all Overseas Territories to legalise same-sex marriage or face UK legislative intervention, the Government said:

"As policy on marriage law is an area of devolved responsibility it should be for the territories to decide and legislate on. […] We are working to encourage those Territories that have not put in place arrangements to recognise and protect same sex relationships […]"

It is not inconceivable for the Government to step in more firmly.  In 2000, the Government legislated through an Order in Council to decriminalise consensual homosexual acts between adults in private in five Territories including the Cayman Islands.  And the Cayman Islands' 2020 Civil Partnership Law was introduced by the Governor following an instruction from the UK Government.

However, in Bermuda, both same-sex marriage and civil unions were rejected in a non-binding referendum in 2016. Its government has welcomed the Privy Council decision and emphasised other protections in place for LGBT+ people.

New guidance on online divorce and FR applications published by HMCTS

At the beginning of the month, HMCTS published a range of new guidance to assist practitioners using the new divorce services online.  The guidance is for all new divorce applications submitted from 6 April 2022 and covers:

  • submitting a sole application;

    • submitting a joint application, for applications where both applicants are represented and applications that involve an unrepresented applicant; and

    • general and alternative service applications. 

Clarification on e-bundles for LiPs

The Financial Remedies Court has published an advisory notice clarifying the rules and guidance about electronic bundles to assist LiPs and also legal representatives. The notice is intended to clarify the rules and guidance about electronic bundles contained in:

  • PD27A Family Procedure Rules;

    • Statement of efficient conduct dated 11 January 2022;

    • President's guidance on e-bundles dated 21 December 2021; and

    • General guidance on electronic bundles dated 29 November 2021.

The note explains that LIPs must produce forms ES1 and ES2. If one party is represented, the legal representative should produce the electronic bundle. If both parties are LIPs, then the applicant should produce the electronic bundle. If neither LIP has sufficient IT knowledge to prepare an electronic bundle the court should find a solution.

FPR committee meeting minutes from February and March 2022 published

Points of note are:

  • The FPRC is considering amending PD27A given the President's guidance on e-bundles and the FRC efficiency statement. The need for "lead in periods" when efficiency statements are issued is highlighted.

    • Guidance has been drafted for applicants together with new statutory declaration forms for the new process for parents applying to change a child's name by deed poll.

    • New rules about return proceedings with linked asylum applications are being drafted for insertion into Part 12. FPR 2010 An overhaul of PD12F on international child abduction is being considered.

    • The pilot for the new standard directions order for general enforcement applications will now not start before 1 July 2022.  Three courts will be involved and a further three will be used as comparisons.

    • The government is implementing conversion rights for opposite sex couples in England and Wales in accordance with the 2019 consultation proposals.  A statutory instrument with changes required to the FPR and other legislation is expected to be laid before Parliament later in 2022.

National Archives Find Case Law launched

The National Archives has taken on responsibility for the external publication of court judgments, creating the first publicly available government database of judgments. 

The new service - Find Case Law - will begin by publishing court and tribunal decisions from the Supreme Court, Court of Appeal, High Court and Upper Tribunals. Going forward, The National Archives will work on inlcuding judgments from more courts and tribunals and to add historical judgments to the service.

The initial collection of judgments and decisions will total 50 000 dating back to 2003 for court judgments and 2015 for tribunal decisions. Users are able to search by neutral citation, party name, judge's name, court / chamber and date.